Persons of interest and the Charter of Rights

Matondo K. Mukulu, Gleaner Writer

In my last article, I made the point that one of the things that our Charter of Rights does is that it presents the judiciary with the opportunity to be the vanguard that stands between the citizen and the State, as the former negotiates his or her space. More recently, Jamaicans For Justice (JFJ) has expressed concern about the practice by the Jamaica Constabulary Force (JCF) of naming individuals as persons of interests. The concern expressed by the JFJ is a genuine one, and what it asserts, mind you, with no real evidence in support, is that persons who are so named have suffered adverse consequences to their reputation. This issue brings into sharp focus the major argument of the extent of the State's obligation under the Charter of Rights and, in particular, that of how the charter will impact on the work of our brave men and women who serve in the JCF.

Positive Obligations

By virtue of Section 13(1) of the charter, the State has a general obligation to "to promote universal respect for and observance of human rights and freedoms". At first blush, one could be excused on reading Section 13(1) for thinking that the nature of the duty imposed is one which is purely negative. Hence the section states that it is the duty of the State organ not to do anything which would amount to a breach. The existence of a positive obligation on the State to take steps to protect infringement is, it is submitted, part of our charter. This we gather by reading Section 19(1), which not only says that a citizen can bring action against the State if a right has been infringed, but, importantly, if the citizen takes the view that it is likely that rights under Section 13 are likely to be infringed, he or she can bring an action. We have further evidence of the existence of this positive obligation as Section 13(2) (b) provides, inter alia, that:

"... No organ of State shall take any action which abrogates, abridges or infringes those rights."

Therefore, in construing the rights which are protected, we need to give careful thought to those which impose a positive obligation on our State. The first such right, considering the JFJ point, is that of the right to life and security of person as provided for by Section 13(3)(a), there is a positive obligation placed on the State in respect of the following:

● Right to freedom of expression: 13 (3)(c)

● Freedom of assembly and association: 13 (3) (e)

● Right to be registered as an elector: 13 (3) (m)(i)

● Right to participate in free and fair elections: 13(m)(ii)

● Right to enjoy a healthy and productive environment free from the threat of injury or damage: 13 (3) (l)

● Right to be subjected to torture or inhumane or degrading punishment or other treatment: 3(6)

● Right to a fair hearing: 16 (2)

Nature of the Positive Obligation

In respect of the right to life, it is beyond debate that the State is obliged not to take life, but I would equally advance the view that the State has a positive duty to take steps to safeguard life. In this regard, parents who take their children to receive vaccinations at our public hospitals and those children wind up dead on account of the manner in which the vaccination has been administered, or in a simpler scenario, the failure of the State to furnish a given vaccination. These instances give rise (if they occur post-implementation of the charter) from the medical-law perspective to an arguable case that the Jamaican State has failed in its obligation to safeguard life (as implied in the right to life). This is a positive development, as prior to this, persons who found themselves in this position would be forced to rely on the stricter test under the common law (case law) which would require the person alleging breach of a general common-law duty to show that the hospital was grossly negligent or had been wilful in its disregard for the duty to protect life. Very few cases could be won on such a high threshold.

We could look in the sphere of employment law, as it relates to public officers, for clear benefits of the positive duty obligation to protect life. Our brave men and women of the police force, it is known, have been forced to work under severe conditions and oftentimes are forced to witness gruesome scenes, without recourse to serious post-event counselling, which, undoubtedly, can have an impact on their lives, to the extent that some have been forced to take their own lives.

In this regard, if a police officer was to take his or her life, say, one of those who is part of our crime crack teams, there is an arguable case, or one could be made out, that the failure on the part of the employer (the State) to furnish them with counsellors amounts to a breach of the obligation to protect life or prohibit degrading treatment. This is not a far-fetched scenario, and I do not attempt to scare the Government. On the contrary, I merely take this opportunity to alert us to the fact that the positive obligations expressed at Section 13(3) (b), and implied by virtue of the wording in Section 19(1), should cause our Government, or the organs of state, to be more vigilant in ensuring that they not only put systems in place to deal with breaches of the charter, but, of equal importance, steps must be taken to ensure that standards are improved so that lives can be safeguarded.

So the State should take care in how it treats our inmates, as though we might think that the charter does not concern them, we take this outdated course of thinking at our own peril, as they too, as citizens, are entitled to have their lives safeguarded, which means that steps must be taken to reduce deaths in our penal institution. We should also give consideration to how we treat those with mental-health problems in these institutions.

PERSONS OF INTEREST

The JFJ has not outlined in what way/s or, for that matter, which of the rights or freedoms it thinks the State is breaching in publishing the names of the persons of interest. This is unfortunate, as it leaves the debate empty of actual information, and I would encourage the JFJ to contribute beyond sound bites.

The editorial writer of the Jamaica Observer (April 28, 2011) also seeks clarification of the practice of naming an individual as a person of interest, as the paper is of the view that the practice is comparable to a private company publishing the name of a person who is no longer authorised to conduct business for the employer. I struggle to understand the comparison, but it seems that the point being made is that the practice can have a negative impact on a person's reputation.

In view of what we know as it relates to the imposition of a positive obligation/duty, it is my view that we should examine the claims within the context of the charter. Undoubtedly, an argument can be made out that the right to respect for one's privacy at Section 13(3) j(ii) is engaged when a person is named as a person of interest. In that, the right is understood to incorporate a person's physical and psychological integrity which, undoubtedly, would be affected if a person's reputation is negatively affected by such an announcement. The analysis does not stop there, as even if it is found that the State's duty under Section 13(3(3) j (i) is engaged, both the JFJ and the Observer are obliged to consider the provisions of Sections 13 (2), which provide that there shall be no infringement on the rights provided for, save only if any infringement is shown to be demonstrably justifiable in a free and democratic society."

The burden would ultimately shift to the State to show that the practice - we have not been told that it is a policy - is one which is justifiable. In my view, if challenged, it would be open to the Government to contend that the approach is justifiable, as it is a tool that is being used to fight crime. In advancing this view, I have taken the liberty to interpret the word 'justifiable' to have the same meaning as that conveyed by 'necessary'.

The solving of a crime, or its prevention, is an obviously necessary activity in any free and democratic State. If the Government is challenged on this, it could certainly deploy the 'justifiable/necessary' argument, which would mean that the concerns raised by the JFJ cannot, without more, stand the scrutiny of rigorous analysis.

However, the real issue is that the State will invariably be in a position to cross the necessary threshold, and it would be sensible to ask a more penetrating question: whether, despite its legitimacy, the practice of naming individuals as persons of interest is a proportionate way of balancing the rights of the individual against the legitimate interest that the State has in investigating and preventing crime.

This is the real test of the Charter and the right to respect for privacy that it guarantees to all Jamaicans.

There is an obvious tension between this right and the State's continued duty to protect us and fulfil its fundamental duty of providing us with security, and for this reason it would be interesting to see how the judiciary deals with this issue. If the practice continues, a public-spirited body should take a test case using Section 19(2) of the charter. This is not a time for sound bites or half-baked human-rights analysis. On the contrary, it is time for action in the courts so that the citizen's charter can be given life, by our bold judges. Anything less is mere posturing.

Matondo K. Mukulu is a practising barrister. Email feedback to columns@gleanerjm.com and m.kmukulu@yahoo.co.uk.