The recently passed Charter of Fundamental Rights and Freedoms (Constitutional Amendment) Act, 2010, which significantly changes Chapter III of the Constitution, represents an important milestone in Jamaica’s legislative history.

Traditional human rights protected by our old arrangements, such as the rights to life, liberty, property, freedom of conscience, expression and movement remain protected by the new Charter. Additionally, we now have constitutional rights to equitable and humane treatment by public authorities, not be discriminated against on the grounds of religion, social class or being male or female, to vote in free and fair elections and to be granted a passport. The latter goes hand in hand with the now constitutionally recognized right to leave the island, previously excluded. Notably, despite calls for its inclusion, there is no immunity from extradition.

The Charter provides a number of more modern rights, including the right of every child to public primary education and 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. These seemingly ambitious rights are nonetheless enforceable by the Charter’s express provision for redress, not just against the state but also in citizen versus citizen litigation. Claims may be brought by the person aggrieved or by civic organizations with the permission of the court, where there is an allegation that any of the provisions of the Charter has been, is being or is likely to be contravened.

Only time will tell how the Charter will be enforced. One can imagine claims being brought by environmental organizations directly against developers even before the development has begun or claims of perceived social class discrimination by persons not hired by a private entity.

The Charter has also been used to elucidate controversial issues, though some remain unclear. For instance, marriage has been defined as the voluntary union of one man and one woman. The death penalty also appears to have been resuscitated from the Privy Council decision of Pratt and Morgan, which curtailed the enforcement of capital punishment. No longer should the delay between being sentenced to death and the execution of the sentence be a bar.

The Charter casts doubt on the constitutionality of some of the Anti-Crime legislation passed last year; for example, the Bail Act which shifts the burden of proof to the accused person to satisfy the Court that he should be granted bail if charged with certain crimes. This appears to be inconsistent with the Charter which provides that sufficient cause must be shown for keeping the accused in custody.

While the provisions for redress make the “guaranteed” rights more substantive, the Charter only guarantees rights to the extent that they “may be demonstrably justified in a free and democratic society”. It will be interesting to see how this phrase is interpreted by the courts if and when claims for redress are made.

The Charter is undoubtedly a step in the right direction and it behoves us as a people to become familiar with its provisions so that we can “respect and uphold the rights of others” and “preserve for [ourselves] and future generations the fundamental rights and freedoms to which they are entitled.”

Alexis Robinson can be reached at alexis.robinson@mfg.com.jm.