Stephen VasciannieHERE IS a general listing of the human rights guaranteed to each person under the Jamaican Constitution:
(a) The right to life
(b) Freedom from arbitrary arrest
and detention
(c) Freedom of movement
(d) Freedom from inhuman treatment
(e) Rights with respect to compulsory acquisition of
property
(f) Privacy rights for home and other property
(g) Rights to secure the protection of law (including, among other things, a fair, public trial, within reasonable time, by an independent and impartial court; the presumption of innocence; adequate time for preparation of defence; the opportunity to defend oneself or to choose legal representation; the right to confront witnesses called by the prosecution; non-retroactivity with respect to laws; and freedom from double jeopardy)
(h) Freedom of conscience (including freedom of thought and religion)
(i) Freedom of expression
(j) Freedom of assembly and association
(k) Protection from discrimination on grounds of race, place of origin, political opinions, colour or creed.
The Jamaican Constitution further provides that if a person alleges that any of the rights listed above have been violated, (s)he may apply to the Supreme Court for redress, and may pursue appeals from the Supreme Court to the Court of Appeal if satisfaction is not obtained.
In addition, the Constitution provides that the Supreme Court shall not proceed to hear a case concerning the foregoing rights if it is satisfied that the complainant has adequate grounds of redress under any other law. So, the human rights in the Constitution act as a kind of final defence mechanism against encroachments on individual liberty and personal dignity.
This broad listing of human rights is consistent with the approach taken by most countries that have adopted the Westminster Export Model Constitution; thus, the situation in Jamaica is broadly similar on paper to that in the rest of the Anglophone Caribbean, as well as other Commonwealth countries. One possible advantage of the commonality of human rights, as derived from Westminster, is that issues of interpretation may be approached from a broad base: so, for instance, in determining the parameters of the right to life in practice, Jamaican Courts may seek guidance from similar jurisdictions, as they may consider appropriate.
As a matter of legal tradition, the Westminster Export Model Constitutions are largely based, of course, on the rules, conventions and practices that constitute the Westminster system as developed in Britain over the centuries. Again, this provides a substantial source of legal authority as to the determination of particular details concerning human rights. And, indeed, the common law basis of many human rights rules actually raises the question whether the Jamaican Constitution provides a comprehensive list of all our human rights.
Another important source of the human rights rules in the Jamaican Constitution is the Universal Declaration of Human Rights. The Universal Declaration of Human Rights is a resolution of the General Assembly of the United Nations passed in 1948. As a resolution of the General Assembly, it is not automatically binding in International Law, but it has served as a model for easily more than 50 national constitutions, and has acted as the bedrock around which various United Nations treaties on human rights have been constructed.
So, for instance, several provisions in the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights give legal form to most of the propositions advanced in the Universal Declaration on Human Rights. These two Covenants (or treaties) have each been ratified by over 100 countries, and are widely accepted as crucial guides to the content of human rights norms.
Not capricious
The upshot, then, is that the listing of human rights in the Jamaican Constitution is neither unique nor capricious. Rather, Jamaica's listing is well within the mainstream of human rights law, with no peculiar provisions giving Jamaicans special rights that somehow do not conform to international practice. What this implies is that, at least on paper, Jamaica is in agreement with most of the international community as to the rights that human beings should have.
Generally, however, long lists of human rights in national constitutions and United Nations documents do not, in themselves, guarantee those rights in practice. For human rights to be respected, the representatives of the State must view the preservation of individual rights as the central purpose of government. And, in addition, the judiciary, representatives of non-governmental organisations, and individuals, must be vigilant in preserving individual rights above considerations of State convenience or over the subjective preferences of the majority.
In recent weeks, we have been presented with an argument to the effect that the Braeton Seven were justifiably killed because they did not respect the right to life of other people. This is a false argument, not least because it completely ignores the right of the Braeton Seven to the protection of law (including a fair trial). It also appears to ignore the right to life, for, as an argument, it presupposes that the right to life may be taken by the police even in circumstances that do not amount to self-defence.
It has also been suggested that, as a nation, we need to surrender some of our human rights and, perhaps, accept a benevolent dictatorship. In this regard, Lee Kuan Yew has been called into evidence, with the argument being that if we suppress some rights, we may reap the fruits of economic growth and an orderly society.
One problem with that approach, however, is that there is no clear indication of which rights we should surrender. Is it the right to life? Freedom from arbitrary arrest? Freedom of conscience? Freedom from inhuman treatment? The list is in the first paragraph of this article: I invite the "anti-rights" campaigners to say which rights we should surrender in their view.
And while they are at it, they could also indicate exactly how the surrender of certain rights will contribute to economic prosperity. Lee Kuan Yew himself has indicated that the culture of Singapore (including its strong orientation concerning the family and the value placed on scholarship) was crucial to that country's take-off.
It is short-cut thinking to assume that there is an automatic trade-off between human rights and economic development. Indeed, one could easily make the contrary argument, for, having regard to Western European States, and the United States, we could say that where human rights flourish, there is more likely to be economic progress.
The post-World War II era, with flourishing liberal democracies in some places gives some support for this proposition. This is in contrast to the collapse of the Soviet Union and its satellites, as well as the demise of communism in large chunks of the world: the communists always argued that we should surrender some of our political and civil rights (bourgeois rights) in favour of economic and social rights. Their failure suggests, among other things, that human beings yearn for freedom from the oppressive State.
There is no basis for arguing that Jamaicans should have fewer rights than others none whatsoever.
Stephen Vasciannie, an attorney-at-law, teaches at the University of the West Indies.
