Martin Henry"EVERY PERSON in Jamaica is entitled to the fundamental rights and freedoms of the individual [including] life, liberty, security of the person, the enjoyment of property and the protection of the law." So says Chapter III of the Constitution. The several protections include: protection from arbitrary arrest or detention, protection of freedom of movement, and provisions to secure protection of law.
A letter in The Gleaner last Thursday again underscores how rights and freedoms can be all too easily trampled upon. The "unbelievable" story, which the writer claims is true, was the arrest of a tradesman travelling on a bus and in possession of a "well-used" drill for which he had no receipt of purchase. The story is not at all unbelievable because of the frequency with which fundamental constitutional rights and freedoms are infringed.
AS GOOD AS ITS ENFORCEMENT
Government has been moving at a snail's pace over more than a decade to strengthen rights and freedoms in the Constitution by replacing Chapter III with a Charter of Rights and Freedoms. Mark you, the law is only as good as its enforcement. Drill Man already has the guaranteed right and freedom to go about his lawful business with a tool of trade, property, in his possession, but he was locked up nonetheless with only cumbersome and expensive recourse for redress. The slowness attached to the process of attempting to strengthen rights and freedoms does not inspire much confidence.
The draft Bill for the Charter of Rights and Freedoms is clear and simple on the issue: "No person shall be deprived of his liberty except on reasonable grounds and in accordance with procedures established by law", except in a number of specified circumstances. The circumstance applicable to Drill Man is "the lawful arrest or detention of a person for the purpose of bringing him before the competent legal authority on reasonable suspicion of his having committed an offence; or where it is considered necessary to prevent his committing an offence."
The ground of arrest or detention should be clearly stated to the person and the period not extended a minute beyond what is required to get him before the competent authority. All this is elaborately spelled out in the new Charter.
18 RIGHTS AND FREEDOMS
The proposed Charter of Rights and Freedoms sets out 18 rights and freedoms. There are the more orthodox ones (already present in Chapter III) of life, liberty, security of person, property and privacy and equality before the law providing due process; freedom of movement, of conscience, assembly- Among the new and more unorthodox are the right of the child to protection and to free tuition between six and 15, environmental rights, the rights to be registered to vote and to vote, and the right to a passport. Several of these are covered under broad old rights and one wonders about their necessity.
One provision of particular interest at this time is "the right to freedom from discrimination on the ground of gender, race, place of origin, social class, colour, religion or political opinion.
"Discriminatory means affording different treatment to different persons attributable wholly or mainly to their respective descriptions by gender, race, place of origin, social class, political opinions, colour or religion whereby persons of one such description are subjected to disabilities or restrictions to which persons of another such description are not made subject or are accorded privileges or advantages which are not accorded to persons of another such description."
INTERESTING CONSEQUENCES
All kinds of interesting consequences flow from this provision! There goes progressive taxation where the rich are charged proportionally more than the poor - social class discrimination. For years we have been running a flat income tax rate and will now be bound by constitutional law to keep it that way. Here comes paternity leave to match maternity leave - no gender discrimination! And these are among the milder challenges. Dennis Morrison bemoaned in his Grace Kennedy Foundation Lecture on "The Citizen and the Law" the paucity of constitutional challenges in the Supreme Court. He may in the future have more work as counsel in this area than he can manage!
Government and Opposition are wrangling in Joint Select Committee over the securing of rights and freedoms in a state of public emergency and while acting to protect the public interest. A good deal of power is vested in the Governor-General on this issue. The required independence and neutrality of the office of Governor-General, at precisely the point where the rights and freedoms of citizens will come under the greatest pressure, must deeply influence the constitutional status of the office and the election of the office holder.
Only a two-thirds majority in Parliament (requiring Opposition support) can declare a period of public emergency or a proclamation by the Governor-General who must declare his satisfaction that a public emergency has in fact arisen from the threat of war, from disaster, disease, or insurrectionist threat to public safety. Clearly, we can't afford a rubber-stamping G-G for this purpose. Only a period of 14 days is allowed in the first instance for a period of public emergency, with extensions possible. And the court has powers of review and determination.
INALIENABLE RIGHTS
The historical and philosophical unfolding of rights and freedoms are fairly well represented in the proposed Charter over which our Parliament cannot agree. The multiplication of rights and freedoms on paper is not, however, the most critical concern of citizens but the protection and preservation on the ground of a handful of God-given, self-evident, inalienable rights, rights which are inherent in the nature of human persons, and not gifts of the state.
Martin Henry is a communication specialist.
