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Human Rights: Let's not get them wrong
By Carolyn Gomes
Sunday, November 01, 2009
Jamaicans For Justice (JFJ) through this article hopes to bring a human rights perspective to a number of important issues which have come to public attention in the last few weeks, including the Charter of Rights and the Caribbean Court of Justice (CCJ).
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| GOMES... what has been completely missing over the last 16 years is any discussion with the people on the proposed new Charter of Rights |
The Charter of Rights
JFJ is deeply disappointed with the way in which the vital issue of enacting a new Charter of Rights for Jamaica has been handled up to this point. This Charter of Rights has a long history, dating back to the appointment of a Constitutional Commission in 1992. That Commission had many sittings and consultations; provided an interim report in 1993; was reappointed in 1993 specifically to consider the "Charter of Rights and Fundamental Freedoms"; and provided a final report under the chairmanship of Dr Lloyd Barnett in February 1994. This report was provided to a Joint Select Committee of Parliament, where it languished for five years before a new draft bill entitled the 'Charter of Rights' was produced and a call for public submissions was published.
Submissions were heard sporadically during 2002, and over the succeeding years numerous modifications have been made to the initial bill. What was tabled without much fanfare in April 2009 by Prime Minister Bruce Golding was the latest version, presumably agreed by members of a Joint Select Committee of Parliament (ie, 12 or 14 elected and non-elected members of Parliament) for action by both Houses of Parliament.
What has been completely missing over the last 16 years is any discussion with the people on the proposed new Charter of Rights. There have been no public meetings held across the island, no systematic public education campaigns and very few opportunities for ordinary citizens to have any input in the text of the Bill and the assumptions which underlie it. Given all that has changed in the last 16 years, shouldn't we challenge this fact?
Equally clear from the three presentations on this new version in Parliament to date is that the parliamentarians don't get it. They fail to understand that rights are not given by them to a grateful and subservient people waiting like Oliver Twist with a begging bowl: "Please sir, may I have some more?" They clearly don't get that rights belong to every single human being in Jamaica, equally, and that the people acquire them by virtue of being human, not because it suits some current political agenda.
There have been several speeches made in Parliament on this issue. First by the prime minister who spent the longest part of his talk explaining that homosexuals would not be getting any rights from him or his Government. This edifying contribution was followed by the Opposition's Mr Robert Pickersgill stating emphatically that they wouldn't be voting for any Charter of Rights that wasn't married to a provision to take away from persons on death row their right not to be subjected to cruel and inhumane punishment (a necessity, they said, arising from the Pratt and Morgan decision of the Privy Council).
This bizarre position seems to have been abandoned by the time Mrs Portia Simpson Miller made her presentation. Unfortunately, she too seems to believe that rights are hers for the bestowing on the grateful poor. Rather than marrying the Charter of Rights to the Pratt and Morgan decision, she instead tied them to the Caribbean Court of Justice (CCJ). If the Government gives the loyal Opposition the CCJ (something it wasn't prepared to give itself in the intervening period since the Privy Council told them what they needed to do), then they will magnanimously vote for the Charter of Rights. (And don't worry, homosexuals will not be getting any rights from the PNP either.)
The parliamentarians have demonstrated that they will not be providing leadership built on values of tolerance, empathy and respect. They will be following the lowest common denominator and prejudice, fearing to actually empower the people, call us to our better selves and improve the lot of all in our land.
Aside from the deeply disappointing approach of the parliamentarians, the Bill in Parliament has a number of flaws. We urge everyone to get a copy and read it, even if the archaic legal language makes it difficult to understand - one of its major flaws. (Wouldn't you like to be able to read your Charter of Rights and understand what it is guaranteeing you?) This document's purpose is to shape the nation's destiny for the 21st century. JFJ doesn't believe that this Bill is properly constructed to accomplish that goal in a positive way. Let us seek audience with the people and so as not to produce something substandard.
The Caribbean Court of Justice (CCJ)
The PNP has now 'married' the Charter of Rights to the CCJ, once again subjecting the rights of citizens to political bargaining. JFJ has serious objections in principle to this modus operandi of our political parties because it ignores the intrinsic value of the legislation in favour of scoring political points. It speaks to the quality of our parliamentary representation.
Having said that, we agree that both issues affect the fundamental rights of the people. In the case of the CCJ, it is the people's right to have a say in the composition and character of their final court of appeal. JFJ has a long history of advocacy on this issue.
Our position on the CCJ, which is equally applicable to the Charter of Rights, is that the public must be EDUCATED about the issue, there must be robust public DEBATE on the issue and then there must be public CONSULTATION. Every citizen has a RIGHT to have a say in how their country is run. This RIGHT is even more crucial when the matters to be decided are as FUNDAMENTAL to democracy as the alteration of one of the three pillars of Government, which are the Legislature, the Executive and the Judiciary. Democratic 'Best Practice' requires that the people be consulted on matters of fundamental importance to them.
During the process of education and debate leading to consultation there should be time to discuss how we can strengthen the protections for the CCJ so that the terms and conditions which affect the Judiciary cannot be altered by a simple majority of Caricom Heads of Government in the same way they altered the Treaty of Chaguaramas. This is not a theoretical concern; it was already done when the terms and conditions of the Judicial Services Commission for the CCJ were altered a short time ago.
It is critical for our democracy that we have a court that will 'stand between the power of the Government to formulate and execute legislation and policy and the citizen's right to exercise his fundamental rights'. It is equally critical that we have a comprehensive and clearly worded Charter of Rights to be interpreted and enforced by the court as it fulfils that role. JFJ has always said that because we are fully capable of getting it right, we must get it right AND the people must be consulted. We, the people, not the politicians, must be the ones to decide the future for our children and grandchildren.
Carolyn Gomes is the executive director of Jamaicans for Justice.
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