Matondo Mukulu, GUEST COLUMNIST
Jamaica now has its equivalent of Canada's Bill of Rights or the United Kingdom's Human Rights Act 1998. This happened when both Houses of Parliament passed the Charter of Fundamental Rights and Freedoms (Constitutional Amendment) Act 2011, which now awaits the royal assent of the governor general. This is reason for us to celebrate, as there was collective agreement that our Constitution, constructed for the early 20th century, does not, in its pre-amended form, reflect development in international human-rights law. This does not mean that Jamaica and its judiciary are strangers to the concept of human rights, as Jamaica is a signatory to numerous international instruments which seek to promote and guarantee rights for different groups, including women and children. In fact, the rebellions against enslavement can be seen as the earliest manifestation of our commitment to human rights. The point that stands out for me, amid all the back-slapping by the politicians and commentators, is the fact that though it took 18 years, our people are still in the dark as to what exactly this seminal piece of legislation confers on them, and how it will change, if at all, the relationship between citizen and government.
What Does it Do?
This is the most frequently asked question as, rightfully so, people want to know, whether, beyond the political proclamations, there is any point in them feeling happy that this move has been made. The first thing that the young man or woman in Jamaica must be told is the fact that the Charter of Fundamental Rights and Freedoms (Constitutional Amendment) Act 2011 will not come into force until it has been signed into law by the governor general, even though both Houses of Parliament have approved it. The practical thing that this law does is that it effectively replaces Chapter III of the Jamaican Constitution with a new chapter, which contains more rights, and it specifically confers a duty on public bodies to demonstrate respect for these rights. Additionally, and as a clear break with the past, the charter, in placing restrictions on the rights of individuals, is decidedly more precise than that which our founding fathers created in 1962.
Types of Rights
In discussing rights, we are more often accustomed to hearing discussions that are centred on those rights (civil rights), which are to be found under the first section of the Universal Declaration of Human Rights (UDH Dec 1948). These include, among others, freedom of expression, freedom of movement, right to life, etc. However, the oftentimes-ignored second section (Articles 22-27) of the declaration contains those social and cultural rights, which include right to housing, education and health. The right to health includes, or has been further developed to include, concepts of a healthy physical environment, and so Article 25 of the UNDH must be read in conjunction with Article 12 of the International Covenant on Economic Social and Cultural Rights 1966, and the United Nations General Comment No 14 of 2000.
Important for us to understand in Jamaica is the fact that the rights (be they civil or cultural), which are contained in our charter, can be regarded as being absolute or qualified. A right is absolute if it permits no derogation, such as the right against torture as contained in Section 13 (3)(o). Qualified are those rights, the enjoyment of which competes with the overall interests of society. They tend to be those rights which conflict with, in some instances, the rights of the individual or the interest of society. In our case, the following are examples of qualified rights, freedom of association and freedom of expression. So the State is permitted, on the basis of specified reasons, to encroach on these rights, but this has to be done for the reasons outlined in the charter, such as the limitation on liberty at a time of public emergency, or where there is a public disaster. Unfortunately, I have noted that the discussion of human rights issues in our country is very polarised, as the rights advocates tend to give the impression that all rights are absolute, with no regard to the question of whether the right is a qualified or limited one.
Content of the charter
The act opens with a clear statement of declaratory obligation on the part of the State to "promote universal respect for, and observance of, human rights and freedoms", but in my view, the seminal provision is to be found in Section 13 (2)(b), which prohibits both Parliament and an organ of the State from taking any action which abrogates, abridges or infringes the rights and freedoms which are to be found in Section 13 subsections (3), (6), along with those contained in sections 14, 15, 16 and 17. The charter retains those rights and freedoms which were contained in the old Chapter III such as:
Right to life, liberty and the security of the person.
Freedom of thought, conscience, belief and observance of religious and political doctrines.
Freedom of expression.
Freedom of peaceful assembly and association.
Freedom of movement.
Due process of law.
Protection from search of the person, respect for private and family life, privacy of home and of communication.
Freedom from discrimination on the grounds of race, colour, gender, place of origin and political interference.
Protection of property rights.
While retaining the foregoing rights, the progressive nature of this chapter is to be found in the fact that it recognises new rights, and when compared with its equivalent in other liberal states, it goes even further by recognising socio-economic rights. For this, the Jamaican Government and the Opposition must be commended, as Caribbean (with the exception of Cuba) states, despite the progressive rhetoric, have been willing to pass laws which recognise these socio-economic rights. Accordingly, among the 'new' rights which the charter recognises are the following:
Freedom of discrimination, on the grounds of social class, religion.
Entitlement of every child (who is a Jamaican citizen) to publicly funded education from pre-primary to primary level.
The right of every child to protection by the State.
The right to enjoy a healthy and productive environment free from the threat of injury or damage from environmental abuse and degradation of the ecological heritage.
Perhaps of equal importance is the fact that the charter gives the citizen of Jamaica the right to bring proceedings against a public body if the citizen takes the view that his or her right has been, is being or is likely to be infringed. See Section 19 (1). These proceedings can be commenced in the Supreme Court without the aggrieved party needing to obtain the leave of the court, and the court is empowered to make an order (including an award for damages) which it deems necessary if it takes the view that there has been a breach of a right. Perhaps quite revolutionary in the context of Jamaica's human-rights procedural law is the fact that a public or civic organisation can now initiate an application in the Supreme Court if it takes the view that a person's right has been or is likely to be aggrieved.
While such applications by public-spirited organisations are not novel in Jamaica, what we now see, for perhaps the first time, is a statutory invitation to those activist or campaigning groups such as the Jamaica Environment Trust or Jamaicans for Justice to get involved in litigating on behalf of persons who might lack the resources to initiate their own action. This is a necessary development, as with public-spirited organisations having the resources (though not finite) to bring claims against the State (in a responsible manner), the judiciary will be forced to perform the role of giving life to the freedom/rights provided for and conduct the required balancing exercise between the State and the individual, which before now has been skewed, some would argue, in the favour of State.
Perfect or Imperfect?
The charter is not a perfect document for a number of reasons. I have heard a series of radio discussions in which it has been highlighted that gays/lesbians have not been expressly protected. While this is correct, I take a different view as to whether, in fact, they have been totally excluded. Even if there is disagreement on that point, we can have no disagreement on the clear and disappointing absence among the protected groups of persons with disabilities. This is an unfortunate omission, which must not be allowed to continue for too long as the equality before the law promised by the charter will be undermined if state organs are allowed to treat some persons less favourably than others on the basis of their disabilities.
Those who are in support of the retention of the death penalty have scored a victory, as the charter, by Section 13 (8)(a), expressly overruled the decision of the Judicial Committee of the Privy Council in Pratt and Morgan vs Attorney General of Jamaica. In Pratt and Morgan, the judges held that holding a person on death row for more than five years constitutes inhumane treatment, and the State could not then execute. Now the charter makes it very clear that a person who has been on death row for five years or more cannot resist the hangman's noose (where sentence is imposed after the charter takes effect). Some argue that this is an improper use by the legislature of its power, but the point that rights advocates must note is that the charter does not preclude the delay point being advanced with other grounds as a reason to quash death sentences.
This is undoubtedly a major piece of legislation, and we, the people, must ensure that we arm ourselves with knowledge of its enlightened contents while the State should earnestly train its employees to understand its full implications, as without knowledge of what is now expected of them, public-sector employees can unwittingly cause the State to incur a large number of claims. It is clear that this monumental piece of legislation will need the court to interpret and apply the rights guaranteed, which calls for a new approach by judges, as they will be called upon to be that voice of reason in the debate that exists between State and the individual.
Matondo K. Mukulu is a practising barrister. Email feedback to email@example.com.