PROFESSOR Stephen Vasciannie, the man at the centre of the Public Service Commission controversy with Prime Minister Bruce Golding, is calling for changes to be made to the Jamaican Constitution, saying it is not doing enough to protect the rights of Jamaican citizens.

“The Jamaican constitution does not deliver on its promise concerning human rights,” Vasciannie said in a public lecture at the University of the West Indies Thursday evening.

“Chapter three of the Jamaican constitution is entitled ‘Fundamental Rights and Freedoms’ and it provides a list of the human rights that we are all supposed to have…we have all the main civil and political rights associated with western democracies and for this reason, we maintain that we are in the mainstream of human rights protection. We have them. We can hold them up when people say we are not following human rights principles, but there is a problem.”

At the heart of that problem, said the professor, is the language in which the constitution was written, describing it as “tortuous” and comparing it to the American constitution which he said was worded with short, snappy expressions easily understood by young students. Another major problem, according to Vasciannie, is the fact that constitutional matters are not debated in court, even though laws and societal norms evolve.

“(It) reflects lawyers’ law… You have to read them more than once to see what is exactly going on,” he said.

“For example, we have the right to liberty but then the constitution goes on to list 11 restrictions on this right or 11 circumstances under which the right to liberty does not apply. Some of them make sense, don’t get me wrong. Some of them make a lot of sense, but they are there and it makes it hard to follow. It just doesn’t ring rhetorically powerful,” he explained.

The professor was presenting the American Friends of Jamaica/Cobb lecture series on the opening day of the university’s Research Day. His talk, which proposed seven factors that influence human rights in Jamaica and suggested changes that ought to be effected, was entitled ‘The human rights project in Jamaica’.

Vasciannie, who lectures in the UWI’s department of government, also said that some of the provisions of the Constitution are limited in the scope of the liberties they allow and that they give government elbow room to limit individual freedoms.

“The freedom of expression, freedom of conscience, the right to privacy, freedom of movement and freedom of assembly are all limited by a general provision which says these rights can be limited by any law that is reasonably required in the interest of defence, public safety, public order, public health and public morality.

“Again, this might be understandable, but notice that it gives considerable latitude to the state to curtail constitutional freedoms or basic human rights. The state gets the choice of whether or not you will have these rights in practice, and public morality is an interesting one because, as you know, your morality might well differ from my morality and sometimes, greater credence is given to people in the privacy of their own homes to exercise their private morality.”

The professor argued that human rights safeguards in the constitution are undermined by savings clauses which uphold pre-Independence laws even though they may contradict the constitution. “Pre-Independence laws are sacrosanct but human rights norms evolve, they develop with the passage of time. So that if we are still required to recognise as valid, laws which existed before Independence, we’re going to have a gap in our laws,” he said using the example of flogging and whipping as punishment for crimes.

“I would have thought that with the passage of time and with the evolution of human rights standards and with a constitution that says no one must be subject to inhuman and degrading punishment, that we would want to get rid of flogging and whipping. But the constitution says if flogging and whipping existed before Independence, it is valid today.

“If the Jamaican government today passes a law, it will be assessed as to whether or not it is constitutional, but if the law existed before Independence it is not considered. So the law is stronger for the pre-Independence period than for the post-Independence period. That seems to me to be a paradox,” professor Vasciannie argued.

Also among the professor’s recommendations for changes to the existing Jamaican constitution, which was drafted in 1962, are for there to be a specific provision against discrimination based on gender and for police killings to be sanctioned only in the case of self-defence.

“Section 24 provides for non-discrimination and it says that you can’t discriminate against people on the bases of race, place of origin, political opinion, colour or creed. What is missing? Sex or gender. In other words, it is possible for the Jamaican government today to pass a law that discriminates on the basis of gender and the constitution wouldn’t strike it down.

“To be sure, there is a provision in Section 13 which talks about “whereas everyone has the fundamental rights” and there is to be no discrimination on the grounds of gender etc, but this is a preamble. It is not a statement of a rule of law,” he said.

He also said that the number of police killings to have occurred in the country in recent years, suggests “that in some matters, agents of the state are prepared to disregard basic human rights”. However, he said the right to life was the most basic human right and that the society should only support police killings in circumstances of self-defence.

“When you do that, you get people to believe that this constitution is for them. It deals with their concerns and is not a theoretical proposition out there,” Vasciannie said.

Jamaica adheres to the declarations under the United Nations human rights committee and that of the Inter-American commission on human rights.