Constitutional reform has been a slow and long process in Jamaica. It has not yielded much fruit since the first attempt when the 1977 Constitutional Reform Programme was launched.
A Constitutional Commission was set up in 1991 to undertake the systematic review of the Jamaican Constitution and, despite many recommendations, which included a 1993 and 1994 report and three joint select committee reports (1995, 2001, 2006), the only tangible outcome from the many different groups set up to review the constitution, was the 2011 Charter of Fundamental Rights and Freedoms, which still fell short in many ways.
We are here again 12 years since the charter and the Ministry of Legal and Constitutional Affairs has announced the set-up of a Constitutional Reform Committee. This committee is tasked with reviewing the 1962 constitution with the goal of facilitating the country's transition to a republic. The committee is expected to do a thorough review of the constitution to include the charter as well as any recommendations made by the previously established constitutional reform committees.
While the value of accomplishing the main objective for setting up the committee cannot be overstated, it would be a missed opportunity if the committee does not ensure that a comprehensive review is done to ensure that our supreme law provides adequate protection for all Jamaicans.
Jamaica AIDS Support for Life, an HIV-focused human rights nongovernment organisation, has many concerns as it relates to inadequacies in the constitution and I will use this medium to speak to two of those:
(1 ) the right to health
(2) freedom from discrimination
The right to health
The Charter of Fundamental Rights and Freedoms guarantees the right to a healthy and productive environment but not the right to health. The right to the highest attainable standard of health is a fundamental right of every human being without distinction. This right is covered in Article 25 of the Universal Declaration of Human Rights (UDHR) and the World Health Organization's (WHO) constitution, wherein the latter recognises same as a legal obligation of states.
The right to health means that health must be accessible, available, acceptable, and of good quality. These terms have all been ventilated in various sources and there is an international standard set as to what they mean. While standards may vary in the instances of a First World versus a Third World country, the right must be guaranteed and the principles of accessibility, availability, acceptability, and quality meet the minimum standards. This means that while health facilities in a Third World country may not have the latest machinery and equipment, they must be able to respond to the needs of their citizens in an acceptable way.
Freedom from discrimination
While freedom from discrimination is covered in the current Charter of Fundamental Rights and Freedoms, it is covered in a limited way. The charter provides protection from discrimination on the grounds of:
(i) being male or female;
(ii) race, place of origin, class, colour, religion, political opinions
Key areas that affect ordinary Jamaicans are not covered. This right needs to be broadened to include health status, disability, sexual orientation, language, gender identity, mental illness, among others. Research shows that discrimination in employment and access to health care is very rife, and is frequently premised on one or more of the characteristics aforementioned. Providing protection from discrimination in these areas would aid many Jamaicans in having an avenue for remedy in areas in which none is currently available.
Some sections of the constitution are entrenched, and some are deeply entrenched, and as such requires special measures in order for them to be amended. It is clear that some of the areas singled out for protection herein are not popular among the Jamaican populace and as such the State must step in and ensure that it fulfils its duty to protect the most vulnerable Jamaicans.
The charter is ordinarily entrenched, and as such does not have to go to a referendum if it receives the requisite two-thirds majority in both Houses of Parliament.
As we look towards constitutional amendment in 2023 and beyond, it would be a grave injustice if the right to health and the broadening of the areas explicitly protected from discrimination are not included. The public can look out for our submission that will detail all our concerns at the appropriate time.
Patrick Lalor is a human rights advocate and serves as policy and advocacy officer at Jamaica AIDS Support for Life. Send comments to the Jamaica Observer or firstname.lastname@example.org.