Peter Espeut | State-funded rights
IN THE middle of this COVID-19 pandemic, much has been made of the ‘right’ of Jamaicans stranded overseas or on the high seas to return to their country. The impression is being given that this right means that the Jamaican Government has the responsibility to make arrangements to fly or otherwise transport home all her citizens, no matter where they are or whatever their circumstances.
We live in an age where all sorts of groups claim ‘rights’, whether or not they are defined or codified by law, and many are spurious, as I have previously written.
Is this ‘right of return’ genuine or spurious? What does the Constitution actually say?
The Charter of Fundamental Rights and Freedoms, possessed by every Jamaican, is contained in Chapter III of Jamaica’s Constitution. Section 13(3)(f) recognises: “the right of freedom of movement, that is to say, the right:
(i) of every citizen of Jamaica to enter Jamaica; and
(ii) of every person lawfully in Jamaica, to move around freely throughout Jamaica, to reside in any part of Jamaica and to leave Jamaica”.
So clearly, if I present myself at one of Jamaica’s borders, I have the right to be given entrance; there is no requirement that the Jamaican Government must transport me to the border from China or London or Antigua if I wish to return home. My right is to enter, not to be brought home. In ensuring that we have this right, the only costs for which the Government is liable are the costs associated with Immigration and Customs.
Just to be clear, I must point out that there is another section – number nine – which qualifies this:
“Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of Subsection (3)(f) of this section … to the extent that the law authorises the taking, in relation to persons detained or whose freedom of movement has been restricted by that law, of measures that are reasonable justifiable for the purpose of dealing with the situation that exists during a period of public emergency or public disaster”.
And so, if at this time during the COVID-19 pandemic, Jamaica has been properly declared to be in a period of public emergency or public disaster, then the right of Jamaicans to gain entry to Jamaica may be restricted. This will promote the common good and safety of the rest of us.
Further, Section 13(3)(k) (ii) recognises the right of every child: “who is a citizen of Jamaica, to publicly funded tuition in a public educational institution at the pre-primary and primary levels”.
GOV’T MUST DELIVER
This right will cost the Government money, and the Government must deliver. Because Jamaican children have a right to state-funded primary and pre-primary education, no government school at that level can charge school fees. But since secondary education is not a constitutional right, fees may be charged at that level.
What do you think? In this day and age, shouldn’t publicly funded secondary education be a right for every Jamaican child? In which century are we?
Also, note that no mention is made of the quality of the education that is guaranteed. Probably most parents in Jamaica (if they could afford it) would prefer to pay for their children to receive primary-level education in a private preparatory school rather than exercise their right to free but lower-quality teaching offered in Government primary schools.
In Section 13(3)(l), the Constitution also recognises “the right to enjoy a healthy and productive environment, free from the threat of injury or damage from environmental abuse and degradation of the ecological heritage”.
This right that the Jamaican Constitution gives us Jamaicans will cost the Government money, both in direct expenditure and in foregone taxes; but they are bound to deliver. Costly though it may be, the Government must prevent the bauxite industry from destroying the healthy and productive ecosystems of all the Cockpit Country, not just the small area of the Cockpit Country Protected Area. I would love to see this tested in court.
Peter Espeut is an environmentalist and development scientist. Email feedback to firstname.lastname@example.org.