HUMAN RIGHTS IN THE CARIBBEAN

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HUMAN RIGHTS IN THECARIBBEAN

• FD13 A
• Law Governance Economy And Society
• By Conway Blake

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What Are Human Right?

• Rights and freedoms which every person is
  entitled to enjoy . Osburns Law Dictionary
• The freedoms immunities and benefits that,
  according to modern values (esp. at international
  law), all human beings should be able to claim as
  a matter of right in the society in which they
  live.- Blacks Law Dictionary

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Sources of Human Rights Law

• INTERNATIONAL LAW
• CONSTITUTIONS (Bill of Rights or Chapters on
  fundamental rights).
• LEGISLATION

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International law

• This is the paramount source of human rights.
  However many of the international norms have
  their genesis in domestic legal systems. Since
  the end of WWII there has been a substantial
  recognition of human rights at the international
  law level. Thus in 1945, much of the impetus for
  human rights promotion and protection saw its
  origins in the United Nations and its agencies.

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General Conventions

• United Nations Charter
• Universal Declaration on Human Rights
• International Covenant on Civil and Political
  Rights
• International Covenant on Economic, Social and
  Cultural Rights
• American Convention on Human Rights

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Other Conventions

• Refugees Convention (1951).
• International Convention on the Elimination of
  All Forms of Racial Discrimination.
• The Convention on the Elimination of All Forms of
  Discrimination Against Women.
• The Convention on the Rights of the Child (1994).

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Application of International Human Rights Norms

• Rights contained in Conventions are not
  automatically enforceable in local courts. Due to
  the doctrine of dualism international
  conventions must be incorporated into legislation
  before they become apart of the local law, and
  therefore can be the basis of litigation in the
  courts.
• Caribbean states rarely incorporate conventions,
  they however form a policy framework within which
  states are governed and laws made.
• International human rights norms also inform
  constitutional interpretation.

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International Human RightsTribunals

• Inter-American Commission on Human Rights.
• United Nations Human Rights Committee.
• These tribunals hear complaints by individuals
  claiming that the state has failed to ensure
  rights ensured to them pursuant to International
  Human Rights Conventions. However, these bodies
  merely make recommendations, and cannot impose
  sanctions.
• Jamaican citizens can no longer bring complaints
  to the U.N. Committee.
• Trinidadian citizens can no longer bring
  complaints to the Inter-American Commission.

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The Constitution/ Bills of Rights

• A Bill of Rights first occurred in a West Indian
  Constitution in the 1961 Guyanese Constitution,
  and was followed in 1962 by those in the Jamaica
  and Trinidad Independence Constitution.
• They are modeled on the European Convention for
  the Protection of Human Rights and Fundamental
  Freedoms.
• They contain substantive litigious rights, and
  provides for redress for breaches of these rights
  in the courts of law.

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Bill of Rights

• Chapter III of the Jamaican Constitution
• Fundamental Rights and Freedoms
• Section 13 of the Jamaica Constitution states
• Whereas every person in Jamaica is entitled to
  the fundamental rights and freedoms of the
  individual, that is to say, has the right,
  whatever his race, place of origin, political
  opinions, colour, creed or sex, but subject to
  respect for the rights and freedoms of others and
  for the public interest

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Particular RightsInConstitutions of the
Caribbean

• Right to Life
• Freedom of Movement
• Protection from inhuman Treatment
• Privacy
• Protection of the Law

• Protection from Arbitrary Arrest
• Freedom of
• Conscience
• Expression
• Association
• Anti-Discrimination norm.

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Application of the Bills of Rights

• No right is absolute, but are subject to the
  rights of others and to considerations of public
  safety, morality etc.
• The Bills attempt to achieve a delicate balance
  between the rights of the individual and the
  wider society.
• The Bills of Rights reflect the state action
  doctrine i.e.
• the rights are only enforceable against the
  state, not against private individuals.
• Savings Law Clauses may limit the application of
  rights.

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QUESTION TIME ?

• Are the Provisions in the Bill of Rights
  Comprehensive, providing protection of all rights
  worth protecting?
• Do you agree with the calls to include provisions
  in the Bills to protect people on the basis of
  language and sexual orientation?

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Human Rights Legislation

• There is a general paucity of such legislation.
• There are generally piecemeal in nature, and do
  not form a comprehensive scheme.
• Many more needed to deal with novel situations,
  which may not be addressed by bill of rights.
• Eg. Equal Opportunity Act St. Lucia and TT
• Employment Legislation protecting inter alia
  maternal rights, equal pay, Non-discrimination
  etc.

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Theoretical Issues

• Universality vs. Cultural Relativity
• Are Human Rights universal in their application,
  or should they differ in their content and
  application depending on the geographical or
  cultural space?
• Does this notion of Relativity negate the concept
  of the universal human experience, which informs
  human rights?

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Classification of Rights

• Civil Political Rights
• vs.
• Social Economic Rights
• Civil Political Rights- Those requiring
  restraint on the part of the state. They are also
  regarded as rights that can be implemented
  immediately, irrespective of prevailing economic
  circumstances.
• Economic Social Rights- are those likely to be
  introduced progressively, and will by their
  nature, vary in character according to economic
  circumstances in the state.

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Observations

• In the charged political environment in Jamaica,
  human rights concerns are sometimes conflated
  with partisan political interests, and thus
  become subject to misleading charges and
  countercharges, designed not so much to elicit
  truth and rectification of injury to individual,
  as to advance narrow political perspectives
• Rights advocacy is often perceived as synonymous
  with opposition to the death penalty
• -Prof. Stephen Vasciannie- International Law and
  Selected Human Rights in Jamaica.

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Lobbying and Advocacy

• Individual and groups in Society work in the
  interest of humanitarianism and fairness, such
  as
• Independent Jamaica Council on Human Rights
• Jamaicans for Justice
• Families Against State Terrorism
• J-FLAG
• What does their presence tell us about the
  Jamaican Society?

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Selected Human Rights Issues

• Freedom of Conscience
• Dennis Forsythe v D.P.P.
• The appellant was a practicing member of the
  Rastafarian faith. He was arrested and charged
  with dealing in ganja, possession of ganja and a
  chillum pipe for use in connection with the
  smoking of ganja.

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• He moved the court under section 25 of the
  Constitution for a declaration that section 21
  thereof had been contravened in that the acts
  constituting the offences charged were part of
  the sacrament of and essential practices of his
  Rastafarian faith.
• Sec. 21(1) Constitution of Jamaica
• Except with his own consent no person shall be
  hindered in the enjoyment of his conscience, and
  for the purposes of this section the said freedom
  includes freedom of thought and religion.and to
  propagate his religion or belief in worship,
  teaching, practice and observance.

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Decision of The Supreme Court

• Held
• Section 26(8) of the Constitution creates an
  exception to the general rule of the law alleged
  to be inconsistent with the Constitution that
  was in force immediately before the appointed day
  and the alleged inconsistency is with a provision
  of Chapter IIIThus even if sections of the
  Dangerous Drugs Act had been inconsistent with
  the Constitution, they would nevertheless have
  been saved from invalidity by section 26(8).

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Right to Equality

• MOHAMED V MORAINE
• The applicant and her parents were Muslims. In
  1994 the applicant passed the common entrance
  examination enabling her to be registered as a
  pupil at the secondary school of her choice. The
  school in question (which had been established in
  1902 and had become a public school under the
  Education Act) had school regulations duly made
  in accordance with the Act which required pupils
  to wear the school uniform. The applicants
  parents asked the school to permit the applicant
  to wear dress conforming to the hijab. The
  principal of the school and its board of
  management refused to allow any such exemption.

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Mohamed v Moraine

• The applicant attended school wearing a modified
  version of school uniform which conformed to the
  hijab but she was not allowed to attend classes
  and was in effect suspended. The applicant
  instituted proceedings for judicial review of the
  decision to suspend her and also claimed redress
  for contravention of her constitutional rights,
  in particular those under section 4(a) (right to
  enjoyment of property), (b) (right to equality
  before the law) and (d) (right to equality of
  treatment by public authorities) the Constitution
  of Trinidad and Tobago.

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Decision of the Court

• Ordering that the decision of the respondents be
  quashed, that the respondents had applied the
  school regulations inflexibly and had not taken
  into account the psychological effect on the
  applicant of refusing to allow her to conform to
  the hijab (to which exception was not taken by
  the Ministry of Education) there was no evidence
  to support the respondents plea that conforming
  to the hijab would be conducive to indiscipline
  or would erode the sense of tradition or loyalty
  to the school, nor that it would accentuate
  distinctions between students from affluent homes
  and less affluent ones the respondents in having
  regard to the fact that the applicant could apply
  for admission to another school and to their fear
  that others might follow the example to seek
  exemption from the requirements as to school
  uniform had taken irrelevant factors into
  account in these regards the decision of the
  respondents had been an unreasonable exercise of
  their powers conferred by the Education Act and
  was unsustainable.

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The Right to Life

• Section 14, Jamaican Constitution
• No person shall intentionally be deprived of his
  life save in execution of the sentence of a court
  in respect of a criminal offence of which he has
  been convicted.
• When Does this life begin?
• See Sec. 72 of the Offences Against the Persons
  Act which prohibits abortion.

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Law and PracticeThe Right to Life

• At very least, these figures prompt serious
  questions as to whether members of the police
  force have wilfully participated in the
  assassination of Jamaican Citizens under the
  guise of State authority. ..There is scope for
  the view that police Killings being a fundamental
  breach to the right to life

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The Death Penalty

• The Constitutionality of the death penalty in
  Jamaica has never been challenged, as it is
  contain in laws that were passed before
  independence, and are hence protected from being
  challenged by virtue of the SAVINGS LAW CLAUSE.
• Constitutional motions have however been brought
  to challenge the manner in which the death
  penalty is imposed.

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Inhuman and Degrading Punishment

• Pratt and Morgan v AG of Jamaica
• Men were convicted of Capital Murder, and were on
  death row for over 13 years awaiting execution.
• They appealed to the JCPC claiming that such a
  situation constituted inhuman and degrading
  punishment.
• The JCPC established that, in capital cases, if
  the time elapsed between the sentence of death
  and execution exceeds five years, there will be
  strong grounds for believing that the delay was
  such as to constitute inhumane or degrading
  punishment. And In such cases, it is highly
  likely-if not inevitable that persons on death
  row will have their capital sentences commuted to
  life in prison.

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Neville Lewis v AG (Jamaica)

• In this case the JCPC commuted death sentences
  against six appellants to life imprisonment, on
  constitutional grounds. The issues were
• What rights do convicted murderers have when they
  petition the Jamaican Privy Council for mercy
  (following the failure of all their appeals) ?
• Whether such convicts have a right not to be
  executed before an external human rights
  agencies, has finally responded to their
  petition?

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Neville lewis v AG

• It was decided that in death penalty cases there
  are compelling reasons why the Jamaican Privy
  Council should be required to give notice to each
  condemned man concerning his plea for mercy. The
  condemned man should also have the opportunity to
  see material presented to the Jamaican P.C., and
  comment thereon.
• This decision was made in the context of
  principles of fairness and natural justice, and
  by reference to human rights norms in
  international conventions to which the state was
  party.

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Neville lewis v AG

• The JCPC further held that the right to
  protection of the Law provided for in section
  13 of the Constitution connotes that condemned
  men are entitled to have access to the external
  human rights processes, even though the result of
  such processes are merely recommendatory, and
  these processes are not incorporated in local law.

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Lambert Watson v The Queen

• On 19 July 1999 the appellant was convicted in
  Hanover of the murder of his common law wife, and
  his child. He stabbed them to death.
• By virtue of the Offences Against the Persons
  Act, this was Capital murder, and therefore the
  penalty was death.
• The Act made it mandatory for persons convicted
  of capital murder to be executed.
• The appellant challenged the mandatory nature of
  the death penaltyclaiming it was inhuman and
  degrading punishment, and inconsistent with the
  Fundamental Rights provisions in the
  Constitution.

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Lambert Watson v The Queen

• It was argued that the mandatory death penalty
  was enacted in law in Jamaica before
  independence, and therefore saved by the savings
  law clause, hence making it immune from
  constitutional challenge.
• HOWEVER
• The law in relation to the death penalty was
  re-enacted in a revised piece of legislation, and
  therefore no longer a pre-independence law, and
  therefore not immune from challenge.

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Lambert Watson v The Queen

• It was held that a mandatory death sentence
  negated human dignity, in that a man was
  sentenced to death without having his particular
  situations heard and addressed. Thus it was held
• In this casebasic humanity requires that the
  appellant should be given an opportunity to show
  why the sentence of death should not be passed on
  him.

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Has The Death Penalty been Abolished?

• What has been the cumulative effect of these
  cases?
• Look at the recent article in reference to the
  Governments sentiments on the death penalty.
• Do you agree with these decisions?

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REFORM

• Where do we go from here?

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Review

• Review the definition and sources of Human
  Rights Law.
• Review the classification of Human Rights.
• Assess whether the bill of rights in your
  constitution needs to be expanded to encompass
  new rights.
• Consider the need for, work and impact of human
  rights groups in Jamaica.
• Examine the right to life, in the context of
  abortion and recent statistics on police killings
  in Jamaica.
• Consider the right to freedom of conscience in
  context of Rastafarianism, and the calls to
  decriminalize ganja.
• Consider the extent to which certain minority
  groups in the society such as the Disabled,
  Homosexuals and Rastafarians enjoy or are
  deprived of certain rights. Is this deprivation
  justified?
• Review the savings law clause and its effects
  in human rights cases.
• Consider factors which may limit the application
  and guarantee of Human Rights in the Caribbean.
• Review the Death Penalty Cases.
• GOOD LUCK IN EXAMS!
• -
• NB/ This presentation is long, so when printing
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