Edward Seaga, Contributor
As noted in last week's article, some have argued that there should be no saving clauses which reserve power for the state, that all fundamental rights and freedoms should be absolute and inalienable, save, of course, for periods of peril and emergency.
In discussions that followed in the Constitutional Reform Commission, we agreed that the construction of the saving clause as drafted and quoted, allowed all rights to be as inalienable as possible without derogating from the need for exceptional treatment in periods of peril and emergency, or as may be demonstrably justified in a free and democratic society, for which ample judicial interpretation exists.
Provisions of the charter
The new draft of the Charter of Fundamental Rights and Freedoms has spelled out each right and freedom individually rather than in clusters. This has enabled specific expression in clear and precise language capable of being understood at reasonable levels of literacy.
The charter is now before Parliament. It was introduced by a bill entitled an Act to Amend the Constitution of Jamaica to provide for a Charter of Fundamental Right and Freedoms after lengthy discussions in a Select Joint Committee of both Houses of Parliament. The protected rights and freedoms include the following 10 provisions which are not original, but in some cases are amended for clarification, followed by eight new provisions:
1. The right to life, liberty and the security of the person;
2. Freedom of thought, conscience, belief and observance of religious and political doctrine;
3. Freedom of expression;
4. The right to seek, distribute or disseminate to any other person, information, opinions and ideas through any media;
5. Freedom of peaceful assembly and association;
6. Freedom of movement;
7. The right to due process of law;
8. Freedom from discrimination, on the ground of race, social class, colour, religion, gender, place of origin or political preferences;
9. Protection of property rights;
10. The right of a person who is charged with or detained, in connection with a criminal offence to communicate with and retain an attorney-at-law;
11. The right to equality before the law;
12. The right to equitable and humane treatment by any public authority in the exercise of any function;
13. The right to protection from search of the person, respect for private and family life, privacy of home and of communication;
14. Entitlement of every child - "to such measures of protection as are required by the status of a minor or as part of the family, society and the State"; and "who is a citizen to publicly funded tuition in a public educational institution at the pre-primary and primary levels".
15. Entitlement of a person charged with a criminal offence or detained in pursuance of a provision of any enactment to communicate with and be visited by his spouse, partner or family member, religious counsellor and a medical practitioner of his choice;
16. Enjoyment of a healthy and productive environment free from threat or injury or damage from environmental abuse and degradation of the ecological heritage;
17. Entitlement of every citizen who is registered to vote, to participate and vote in free and fair elections; and
18. Entitlement of every citizen to be granted a passport and not be denied or deprived thereof except by due process of law.
Notwithstanding the broadening and deepening of human rights to which the state must commit itself in this exercise, perhaps the most significant new feature in the charter is to be found in sub section (5) of Section 3, which expands the scope of the charter to include "natural or juristic persons" under the protective covering for which constitutional remedies can be sought. The existing provisions cover only abuses by the state. The amendment will allow abuses by the act of any other person or body to be justiceable.
This makes it possible for citizens whose rights have been abused to seek redress in a court of law against not only the state and entities of the state, but any civil authority or persons, subject to "the nature of any duty imposed by the right".
This is an enormous expansion of the protective covering in the Charter of Fundamental Rights and Freedoms.
Departure from the traditional group of human rights to include constitutional remedies against persons or bodies not connected to the state has opened another door, according to Earl Witter, public defender, to seek redress against offenders who abuse by non-feasance, that is, non-performance of something for which responsibility exists, or mal-feasance, a responsibility which is not carried out. Most of the abuses of human rights fall into these two categories which deprive the citizen of an entitlement and should be included in the charter in the same manner as the entitlement of a child to be schooled and to be shielded from abuse have been listed.
More than any other single factor, the performance of a government in enhancing public administration, could be lifted to exemplary levels through expansion of the charter to include these two entitlements to performance as areas in which serious grievances could be opened to constitutional remedies.
The eight new articles of the charter prohibit a range of notorious abuses and gross neglect by committing the State to provide:
State of emergency
When the reforms are approved, no longer will it be possible to sustain a state of emergency for longer than two weeks without approval of the Opposition, nor can any extension of the period exceed three months at a time. Additionally, the basis on which an emergency is declared can be challenged in a court of law. Further, any person detained would have a right of review within six weeks, not six months, and the hearings would be by a tribunal whose findings must be accepted by the authorities.
Many will contend, and with some justification, that even the most comprehensive and far reaching Charter of Rights and Freedoms are in large part empty but well-meaning declarations, if they cannot be enforced on behalf of the poor and disadvantaged who are mostly defenceless against abuses of their fundamental rights and freedoms.
With the power to enforce sanctions, the Charter of Fundamental Rights and Freedoms could become an effective tool to foster the development of a dynamic society. Without an effective public defender to enforce sanctions against abuse, the Charter of Fundamental Rights and Freedoms would become another useless document destined for a dark corner of a dusty cupboard.
Not only must remedies for the shortcomings of the act establishing the public defender be urgently enacted, but funding must be guaranteed to enable prosecutions to be provided through the new constitutional provision to guarantee legal aid for all entitled persons. I have seen other bodies which are noble in intent, such as the Police Public Complaints Authority, launched with fanfare, but deprived of resources to function.
The Charter of Rights when enacted and funded and the public defender when fully empowered and funded, together represent the sublime hope for justice for the poor who historically have been unable to find justice for themselves.
Edward Seaga is a former prime minister. He is now a Distinguished Fellow at the UWI and Pro Chancellor at UTech. Emails may be sent to odf@uwimona.edu.jm or columns@gleanerjm.com.