Jamaicans for Justice on Charter of Rights, Human rights: let's not get them wrong

The following article was submitted by civic action group, Jamaicans for Justice.

Jamaicans For Justice (JFJ) is writing in hopes of bringing a human rights perspective to a number of important issues which have come to public attention in the last few weeks including the Charter of Rights and the Caribbean Court of Justice (CCJ).

JFJ is deeply disappointed in how the vital issue of enacting a new Charter of Rights for Jamaica has been handled to this point. This Charter of Rights has a long history dating back to the appointment of a Constitutional Commission in 1992. That Commission had many sittings and consultations, provided an interim report in 1993, was re-appointed in 1993 specifically to consider the "Charter of Rights and Fundamental Freedoms" and provided a final report under the Chairmanship of Dr Lloyd Barnett in February 1994.

This report was provided to a joint select committee of Parliament, where it languished for five years before a new draft bill entitled the 'Charter of Rights' was produced and a call for public submissions was published. Submissions were heard sporadically during 2002, and over the succeeding years numerous modifications have been made to the initial bill. What was tabled without much fanfare in April 2009 by Prime Minister Golding was the latest version, presumably agreed by members of a joint select committee of Parliament (i.e, 12 or 14 elected members of Parliament and Senators) for action by both Houses of Parliament.

new Charter of Rights

What has been completely missing over the last 16 years is any discussion of the proposed new Charter of Rights with the people. There have been no public meetings held across the island, no systematic public education campaign and very few opportunities for ordinary citizens to have any input on the text of the bill and the assumptions which underlie it. Given all that has changed in the last 16 years, shouldn't we challenge this fact?

Equally clear from the three presentations on this new version in Parliament to date is that the parliamentarians don't get it. They fail to understand that rights are not given by them to a grateful and subservient people waiting like Oliver Twist with a begging bowl, saying "please Sir, may I have some more". They clearly don't get that rights belong to every single human being in Jamaica equally, and that the people acquire them by virtue of being human, not because it suits some current political agenda.

There have been several speeches made in Parliament on this issue. First by the prime minister who spent the longest part of his talk explaining that homosexuals would not be getting any rights from him or his Government! This edifying contribution was followed by one from Robert Pickersgill for the Opposition, stating emphatically that they wouldn't be voting for any Charter of Rights that wasn't married to a provision to take away from persons on death row their right not to be subjected to cruel and inhumane punishment (a necessity they said arising from the Pratt and Morgan decision of the Privy Council).

This bizarre position seems to have been abandoned by the time Portia Simpson Miller made her presentation. Unfortunately, she too seems to believe that rights are hers for the bestowing on the grateful poor. Rather than marrying the Charter of Rights to the Pratt and Morgan decision, she instead tied them to the CCJ. If the Government gives the loyal Opposition the CCJ, (something it wasn't prepared to give itself in the intervening period since the Privy Council told them what they needed to do) then they will magnanimously vote for the Charter of Rights. (And don't worry, homosexuals will not be getting any rights from the People's National Party either.)

The parliamentarians have demonstrated that they will not be providing leadership built on values of tolerance, empathy and respect. They will be following the lowest common denominator and prejudice, fearing to empower the people, calling us to our better selves and improving the lot of all in our land.

Aside from the deeply disappointing approach of the parliamentarians, the bill in parliament has a number of flaws. We urge everyone to get a copy and read it, even if the archaic legal language makes it difficult to understand, which is one of its major flaws. (Wouldn't you like to be able to read your Charter of Rights and understand what it is guaranteeing you?) This document is meant to be shaping the nation's destiny for the 21st century. JFJ doesn't believe that this bill is currently in a state that could accomplish that goal in a positive way. Let us go back to the people, and not just go with something substandard because we are tired of looking ineffectual for not passing it.

The Caribbean Court of Justice (CCJ)

The PNP has now 'married' the Charter of Rights to the CCJ, once again subjecting the rights of citizens to political bargaining. JFJ has serious objections in principle to this modus operandi of our political parties because it ignores the intrinsic value of the legislation in favour of scoring political points. It speaks to the quality of our parliamentary representation.

Having said that, we agree that both these issues affect fundamental rights of the people. In the case of the CCJ, it is the people's right to have a say in the composition and character of their final court of appeal. JFJ has a long history of advocacy on this issue.

Our position on the CCJ, which is equally applicable to the Charter of Rights, is that the public must be educated about the issue; there must be robust public debate on the issue and then there must be public consultation. Every citizen has a right to have a say in how his or her country is run. This right is even more crucial when the matters to be decided are as fundamental to democracy as the alteration of one of the three pillars of government, which are the legislature, the executive and the judiciary. Democratic 'Best Practice' requires that the people be consulted on matters of fundamental importance to them.

During the process of education and debate leading to consultation there should be time to discuss how we can strengthen the protections for the CCJ so that the terms and conditions which affect the judiciary cannot be altered by simple majority of Caricom heads of government as they alter the Treaty of Chaguaramas. And this is not a theoretical concern; it was already done when the terms and conditions of the Judicial Services commission for the CCJ was altered a short time ago.

get it right

It is critical for our democracy that we have a court that will "stand between the power of the state government to formulate and execute legislation and policy and the citizen's right to the exercise of his fundamental rights". It is equally critical that we have a comprehensive and clearly worded Charter of Rights to be interpreted and enforced by the court as it fulfils that role.

JFJ has always said that because we, the people, are fully capable of getting it right, we must get it right and the people must be consulted. We, the people, not the politicians, must be the ones to decide the future for our children and grandchildren.