Remembering constitutional rights
Stephen Vasciannie
Jamaica Gleaner
October 20, 2003
SOME PERSONS, at home and abroad, have been calling for a state of emergency for at least a year. A few weeks ago, Mr. Kingsley Thomas, known to be a Prime Ministerial confidante, made an impassioned plea for a state of emergency. The Prime Minister has rather calmly said there will be no state of emergency.
Last week, there was unrest in Canterbury, Montego Bay, and the police indicated that they found various high-powered weapons in the area of the unrest. Last week, too, Mr. Gordon 'Butch' Stewart, one of the two most significant forces in the Jamaican tourism industry, argued that we should be prepared to look beyond our boundaries for crime-fighting expertise at all levels, given the nature of our problems.
At the same time, Dr. David McBean, new executive director of CVM Television, has weighed in with the view that in Jamaica we all talk about rights, but very few people talk about responsibilities. It may be time for a column on our constitutional rights.
Chapter III of the Jamaican Constitution, under the heading 'Fundamental Rights and Freedoms', sets out in Sections 13 to 26, the main rights for all Jamaicans. Of course, the scheme in Chapter III does not purport to identify all rights that a person may claim, for that listing would be almost indeterminate; rather, Chapter III concentrates on the most fundamental rights, those which the Jamaican society regards as essential for human existence, dignity and for our collective sense of fairness.
THE LIST
In summary form, the following rights and freedoms are identified in Chapter III:
(1) The right to life;
(2) Freedom from arbitrary arrest or detention;
(3) Freedom of movement;
(4) Freedom from torture, and from inhuman or degrading punishment or other treatment;
(5) Freedom from arbitrary deprivation of property;
(6) Rights to privacy of home and other property;
(7) The protection of law (including the right to a fair trial);
(8) Freedom of conscience;
(9) Freedom of expression;
(10) Freedom of assembly and association; and
(11) Protection from discrimination on grounds of race, place of origin, political opinions, colour or creed.
If a person believes that any of these basic rights has been violated, is being violated, or is likely to be violated, that person may apply to the Supreme Court for redress. The Supreme Court is authorised to decide cases concerning Chapter III of the Constitution, but, in any case where the Court believes that the rights of the individual may be respected pursuant to a law other than the Constitution, the Supreme Court will not exercise its powers under the Constitution.
Chapter III does not provide a simple listing of rights in the way that I have done. Instead, each Chapter III right is carefully drafted, mainly to ensure that a balance is retained between the rights of the individual, on the one hand, and the rights and freedoms of others or the public interest, on the other hand.
In other words, the formulation of fundamental rights in the Jamaican Constitution expressly contemplates that human rights are part of the balance that has to be struck concerning the place of the individual in the wider society - both rights and responsibilities are embraced by the formulations in Chapter III.
BALANCE
This may be demonstrated by three examples. Section 14 of the Constitution, summarised above as the right to life, does not mean that life must - as a matter of constitutional law - be preserved in all circumstances. Section 14(1) actually reads as follows: "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." Then, Section 14(2) indicates some circumstances in which life may be taken without giving rise to a constitutional violation.
It may well be that we should consider abolishing the death penalty in Jamaica: that is a matter for debate on another occasion. The point here is just that the constitution seeks to balance the individual's right to life with what has traditionally been the State's view on the means by which the society must protect itself from those who commit murder.
My second example of this type of balancing process concerns Section 15 of the Constitution. Section 15, noted above as freedom from arbitrary arrest or detention, indicates in paragraph (1) that: "No person shall be deprived of his personal liberty..."; and, then, the provision immediately lists over ten circumstances in which a person may legally be deprived of personal liberty.
Each of these exceptions - such as exceptions for persons who are of unsound mind, to prevent unlawful entry to Jamaica, or to prevent the spread of disease - is constructed on the notion that the society has to protect itself. So, again, it would be unfair to suggest that the Constitution is concerned only about rights, if this is taken to mean that the Constitution gives licence to social abuse and irresponsibility.
MOVEMENT
Thirdly if we examine freedom of movement as enshrined in Section 16 of the Constitution, it becomes readily apparent that this right may be significantly circumscribed in the interests of the wider society. Section 16(1) stipulates the basic entitlement to freedom of movement throughout Jamaica (including the right to reside in any part of Jamaica, the right to enter the country and immunity from expulsion from the country).
Immediately, however, Section 16(2) indicates that lawful detention does not contravene the right to freedom of movement, while Section 16(3) specifies, among other things, that freedom of movement may be curtailed if this is reasonably required "in the interests of defence, public safety, public order, public morality or public health."
So, in practice, curfews are familiar encumbrances in particular communities, and reasonable restrictions may be placed on marches in times of public unrest. Given that wide powers to restrict freedom of movement already exist as part of the constitutional rule in Section 16, it is difficult to understand how a state of emergency would be helpful to the state in matters concerning movement.
It may be that current calls for a state of emergency simply reflect how anxious all law-abiding citizens are to have a reduction in crime and violence. But anxiety should prompt neither desperation nor a flight from analysis. Those who wish to take away our constitutional rights should demonstrate how a state of emergency will actually contribute to the reduction in crime and violence in Jamaica at this time.
Stephen Vasciannie is Professor of International Law and Head of the Department of Government, UWI. He is a consultant in the Attorney-General's chambers.