Sat | Sep 23, 2017

New fundamental rights

Published:Friday | March 25, 2011 | 3:00 AM

For the first time in the almost half a century we have been an independent country, the Lower House of our Parliament has amended an 'entrenched' section of the Jamaican Constitution - and an important one too: Chapter III - the Charter of Fundamental Rights and Freedoms. The Upper House still has work to do. I am enough of a cynic not to expect too much from members of political parties which continue to support garrisons and openly associate with questionable persons, but this new bill of rights does make progress in some areas, while leaving much room for improvement.

I like the new beginning of the 2011 Charter [13(1)(b)]: "All persons in Jamaica are entitled to ... fundamental rights and freedoms ... by virtue of their inherent dignity as persons." This indicates that our lawmakers are aware that our fundamental rights and freedoms do not begin at Gordon House, but are already ours by virtue of our status as human beings; all they do is codify them.

Brother's keeper

Another new notion is contained in [13(1)(c)]: "All persons are under a responsibility to respect and uphold the rights of others recognised in this chapter." I guess this is another way of saying that we are all our brother's and sister's keeper, but it may have deeper implications. If the Constitution of Jamaica gives me responsibility for the rights of others, then maybe it gives me locus standi to be able to take matters to court on their behalf. One of the handicaps of our jurisprudence - especially in environmental matters - is proving personal connection to, and harm from, certain (say, environmentally damaging) practices. Maybe this can open the way for class-action suits in our jurisdiction.

Another new formulation is [13(2)(b)]: "Parliament shall pass no law and no organ of the State shall take any action which abrogates, abridges or infringes those rights." This certainly is going to open up a raft of constitutional actions; and rightly so, for if a fundamental right means anything, then it should be justiciable - we should be able to take it to court.

As an independent country, we have a short but brutal history, and I think I hear echoes from the past in the wording of some of the fundamental rights and freedoms. For example, one of the first in the new charter [13(3)(b)] is: "The right to freedom of thought, conscience, belief and observance of political doctrines." This is a clear case of 'politician christen 'im pickney fuss', so from henceforth there will be no more persecution of Marxists or Maoists or communists or fascists or democratic socialists or imperialists or colonialists in Jamaica, and anyone who does so verbally or otherwise will be in breach of the Constitution.

Another fundamental right and freedom [13(3)(f)(ii)] is the right "of every person lawfully in Jamaica to move around freely throughout Jamaica ...". Do I detect the beginning of anti-garrison legislation? If garrison communities can be judged to be unconstitutional, maybe the Government can be constitutionally compelled to dismantle them!

People can sue

Another new formulation [13(3)(g)] is "the right to equality before the law". So often there is the cry that, in this country of wide income disparity, some people seem more equal than others, and receive special treatment. Now that for the first time equality is explicitly in our Constitution, people can sue for this right.

The new charter explicitly guarantees the right of everyone [13(3)(j)] to: "(i) protection from search of the person and property; (ii) respect for and protection of ... privacy of the home; and (iii) protection of privacy of ... communication". With equality now, homes in the ghetto are just as private and inviolate as those in upscale St Andrew, and so clearly the police will have to change the way they do business, especially in terms of kicking down doors, and asking for searches. I wonder whether this section makes the Interception of Communication Act and certain memoranda of understanding unconstitutional?

Section 13(3)(k)(ii) entitles every Jamaican citizen "to publicly funded tuition in a public educational institution at the pre-primary and primary levels". A manifesto promise has now become a constitutional mandate.

And finally for this column, Section 13(3)(l) guarantees to every resident of Jamaica "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". Remember: "Parliament shall pass no law and no organ of the State shall take any action which abrogates, abridges or infringes" this right.

Bring it on!

Peter Espeut is a sociologist and an environmentalist. Email feedback to columns@gleanerjm.com and pespeut@gmail.com.

Read the Charter of Rights for yourself at http://tinyurl.com/charterofrights