Charter of Rights passed. Now what?

Martin Henry, Gleaner Writer

It has been long in coming - some 17 years. But it is now almost here. Last Tuesday, 51 members of Parliament enthusiastically voted for the Charter of Rights in a rare cross-party Government and Opposition agreement. The Senate must now vote on the bill. But the yea of the senators is a foregone conclusion.

Now comes the hard part - actually strengthening human rights on the ground by the State protecting the rights and freedoms, old and new, specified in the Charter of Rights. Multiplying fundamental rights and freedoms on paper is not the same as protecting them in reality. I have always had a problem with 'fundamental' things being numerous. Almost by definition, what is truly fundamental must be few. The United Nations has 30 items in its 1948 Universal Declaration of Human Rights to which all its member states are signatories, but just watching current events we see the peoples of Libya, Bahrain, Yemen, Egypt, Syria and Tunisia, at the present moment fighting for their fundamental rights and freedoms. And there are breaches of the Universal Declaration in any number of other signatory states, including in the big bastions of democracy.

Despite its failures and shortcomings, Jamaica is considerably better off in its human-rights record than the majority of fellow members of the United Nations. I will say some more about that later.

The United States has only 10 articles in its Bill of Rights which was affixed to the Constitution as ratified amendments only four years after the Constitution was promulgated. Article Nine states simply: "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." The State cannot confer rights; the State can only recognise the 'self-evident' and 'inalienable' rights with which human persons are "endowed by their Creator".

The yes vote in the Lower House last Tuesday came at a time when the prime minister of Jamaica was appearing before the Manatt-Coke commission of enquiry. An extraordinarily important subtext of that meandering commission, largely ignored by most Jamaicans and the legal stars of the enquiry, is the constitutional rights of a citizen, and, therefore, of all citizens, and the will and capacity of the Government to protect and to defend those rights.

Both the prime minister and his minister of justice and attorney general, Dorothy Lightbourne, have steadfastly insisted that the extradition request from the United States for Christopher Coke did not meet the requirements of Jamaican law and of the extradition treaty between both countries. I personally asked the prime minister, when he met with civic leaders and opinion shapers at Jamaica House to explain himself over the Manatt issue, why was Coke extradited if, as he (Golding) was strenuously explaining, the Government of Jamaica was of the view up to then that due process had not been observed. The prime minister's short answer was, "Martin, we bowed."

Yielded to pressure

The justice minister and attorney general told the commission of enquiry that she yielded to intensifying public and diplomatic pressure and signed the extradition order without being convinced that it was legally proper to do so.

These confessions are absolutely alarming! But as far as most Jamaicans are concerned, the country's biggest, baddest don has been exported to be somebody else's headache and all is well - well, until our Government chooses to bow over our personal rights and freedoms under whatever pressure it is unwilling to bear.

Incidentally, the preamble to the Charter of Rights says, in part, "All individuals, having duties to other individuals and to the communities to which they belong, are under a responsibility to respect the rights of others and to strive for the promotion and observance of the rights recognised in this chapter."

If one fundamental right can be more fundamental than another, there is no more fundamental right than the right to life. The Charter of Rights, in its enumeration of rights, kicks off with "a) the right to life, liberty and security of the person." The state incursion into Coke's stronghold of Tivoli Gardens to execute the extradition warrant took 74 lives (including one soldier), many of them non-combatant citizens. Several corpses of persons executed before the incursion were exhumed during the operations, reflecting the failure of the State to secure its citizens against internal anti-State forces.

Accompanying the news of the passing of the Charter of Rights Bill by the House of Representatives was the good news that there has been a 42 per cent reduction in murder for year to date over last year. But with 37 people still killed across the island in the first 20 days of this month, the horrendous threat to life and security of person which has become perennial in this country is firmly underscored.

The Jamaican State has been a huge failure in protecting and defending this most fundamental of rights, the right to life. And its law-enforcement agents themselves have been involved in many extrajudicial killings.

Right to education

Ahead of the vote, Minister of Education Andrew Holness was bragging in a forum outside of Parliament that the Charter of Rights specifies the "right of every child who is a citizen between the ages of six and 15 years to free tuition in a public educational institution, at the primary level". Government, he said, is going further to pay for pre-primary early childhood education. Economic 'rights' to be paid for by the State are tricky things and are certainly not fundamental. Why not a 'right' to secondary education? And what happens when the State may no longer be able to pay. We are witnessing a sharp pruning of welfare benefits in many rich developed states, benefits which their citizens felt to be rights even if the Constitution did not specifically say so.

The unveiling of the 2011-2012 Budget is only days away. I want to again advise our Government, if it has not already done so, to slice a small, across-the-board percentage off of every other Budget line and to give National Security and Justice more material and human resources to protect and defend "the right to life, liberty and security of the person". The State has no more fundamental responsibility.

Meanwhile, as Holness brags about education rights, this newspaper had blazing on the front page of last Sunday's issue, 'Nobody's children?' The paper reported "close to 100 held illegally in lock-ups described by human-rights advocates as unhealthy and inhumane". A report by the Office of the Children's Advocate (OCA) says, "There are six or seven children in each cell. There are no beds. The children sleep on concrete bunks and were provided with bottles into which to pass urine.. They are let out of their cells for five minutes each day to have a bath and use the toilet ... . These small cells can be described as a furnace by day and a freezer by night .. ."

Tell me now: What is more important for human rights? Interfering with fees in early childhood education, a system which is working reasonably well by community endeavour, or getting children out of unlawful custody in state lock-ups under filthy and overcrowded conditions"?

The Charter of Rights says, "No person shall be subjected to torture or inhuman or degrading punishment or other treatment."

Christopher Coke, and his father before him, were important men in a constituency which, shall we say, had developed a system of constrained voting in which the vast majority of the ballots were cast for one party and its long-stay candidate. The Charter of Rights enshrines voting rights which, along with education and environmental rights, are the big new categories of rights enumerated. I think all of them are subsumed in other more fundamental rights.

Breaking down the garrisons is important for the greater flourishing of rights and freedoms for all Jamaicans: Right to liberty, freedom of conscience and observance of political doctrines, freedom of peaceful association, freedom of movement, property rights, etc.

Areas to be proud of

On the brighter side, Jamaica has many elements in its rights and freedoms record to be justifiably proud of. The country has one of the freest presses in the world, outranking some developed democratic states. Jamaica has a high gender-development index score on the UNDP Human Development Index.

The country, historically, has had high levels of religious tolerance and great freedoms of conscience, of expression and of association. There are no legal restrictions on internal and external movement.

Property rights are secure in law, although enjoyment of property is often ruined by neighbours. The State is far less intrusive into privacy than many an advanced democratic state.

In principle, despite the creakings and groaning of the justice system under the weight of its deprivations, there is equality before the law and an honouring of the right to due process of law. Denying Coke due process, whatever his crimes might be, is deeply troubling. And his alleged crimes in the Jamaican state, including organising attacks against the State itself, warrant his appearance before our courts far more than being extradited to a foreign jurisdiction. Why didn't the Jamaican Government say to the United States government, we need to try this man here more than you need to try him there?

Rights and freedoms are only as good as their enforcement. Let's see how handling the new Charter of Rights and Freedoms, soon to be voted by the Senate and signed into law by the governor general, will be different from the handling of Chapter III of the 1962 Constitution which it will replace with more elaborate expressions of rights and freedoms.

Martin Henry is a communication specialist. Email feedback to columns@gleanerjm.com and medhen@gmail.com.