Stephen Vasciannie
IN HER much-lauded inaugural speech, Prime Minister Portia Simpson Miller promised, nay, pledged, that the promotion and protection of human rights would be a central goal of her administration.
This - like several other early pronouncements - has considerable power at the level of rhetoric, and has raised sanguine expectations. The challenge, however, will be for her administration to convert the pledge to reality.
As we assess whether the pledge is being honoured, what should we examine? What are human rights, properly so-called, as distinct from other rights and other things that people claim to be human rights?
LOCAL LAW
On one level, the matter is straightforward enough. Human rights are the most important rights that we have, and they belong to each individual simply because he or she is a human.
In the Jamaican context, it may also be argued that these rights are given constitutional recognition: They are the 'fundamental rights and freedoms' set out in Chapter III of the Jamaican Constitution. Thus, they include the right to life, freedom from cruel, inhuman or degrading punishment or treatment, freedom of speech, freedom of association, freedom from discrimination, and so on.
As a matter of local law, therefore, when we are assessing whether human rights are being honoured by this administration, we should pay primary attention to Jamaica's Constitution, and to whether the constitutionally guaranteed rights are being safeguarded in practice.
INTERNATIONAL LAW
We should remember, however, that human rights properly so-called have an international dimension. Most of the human rights recognised today were first set out systematically in the Universal Declaration on Human Rights of 1948.
The systematic list set out in the Universal Declaration was then given binding form in two treaties, namely, the International Convention on Civil and Political Rights (the ICCPR) and the International Covenant on Economic, Social and Cultural Rights (the ICESCR). Thus, as a matter of international law, if the Simpson Millerine pledge is being assessed internationally, the main points of measurement will be these two human rights treaties supported by the United Nations.
What does the ICCPR say about human rights? It provides a list of the main civil and political rights to which we are all entitled. This list includes:
(i) Equal rights for men and women; (ii) the right to life; (iii) freedom from torture or cruel, inhuman or degrading treatment; (iv) freedom from slavery, servitude and compulsory labour;
(v) Tthe right to liberty and security of person; (vi) freedom of movement; (vii) equality before the courts, the presumption of innocence, and the right to a fair trial; (viii) freedom from arbitrary and unlawful interference with one's privacy, family, home or correspondence; (ix) freedom of thought, conscience and religion; (x) freedom of expression; (xi)the right of peaceful assembly; (xii) freedom of association; (xiii) the right to marry and found a family; and (xiv) the right to protection (for children).
There are other rights, but this list gives a general idea of the rights protected in the ICCPR. Most, if not all, of these rights are recognised in Jamaica, although there will be arguments about the extent to which they are actually honoured in practice; this, therefore, is the main listing against which the Simpson Miller pledge may have to be assessed.
ECONOMIC RIGHTS
The other major treaty on human rights - the ICESCR - also merits consideration. This treaty sets out economic, social and cultural rights, and includes, for example, freedom from discrimination, a right that is of particular concern to Jamaicans.
The economic, social and cultural rights include: the right to work, the right to just and favourable conditions of work, the right to form and join trade unions, the right to social security, the right to an adequate standard of living, freedom from hunger, the right to the highest attainable standard of physical and mental health, the right to education, and the right to take part in cultural life.
Some of the rights in the ICESCR are controversial because they appear to be desirable things, rather than legal rights. So, for example, the right to work, or freedom from hunger, have never been guaranteed as legally enforceable rights in Western societies that place emphasis on the values of individual initiative and self-reliance.
Also, the ICESCR itself takes the view that, in practice, these rights are to be recognised only to the extent that the country can afford to provide them: This is a loophole that allows every state to avoid providing the right to food and so on.
In the beginning, therefore, we should judge the Simpson Miller Government on the extent to which it ensures the human rights in the Jamaican Constitution and in the ICCPR. These two instruments are similar in several respects, and provide good measures of our commitment to human rights in practice.
Stephen Vasciannie is a professor at the University of the West Indies and a deputy Solicitor General.
