Documente Academic
Documente Profesional
Documente Cultură
healthy for a free society. A Charter of Rights needs to live in the minds of
the people. Its core provisions should be grounded in the consciousness
of young people before they leave school. It should be written in clear
and resonant language, not turgid legalese.
Reform of the Constitution has been tackled at a classically Jamaican
pace. The need for reform was recognised in 1992 when a Constitutional
Commission was set up. It held public meetings and reported in 1994.
Its report included a draft Bill of Rights. The draft Bill has been amended
by a Joint Select Committee and is now before the Jamaica Parliament.
In reasonably clear language the Bill sets out nineteen rights which
neither Parliament or any organ of the State may abrogate or infringe. The
rights include many which are not to be found in the 1962 Constitution,
such as the right to vote; the right to a healthy environment; the rights
of children to protection and to free primary education; the right to a
passport; and the right to equitable and humane treatment from any
public authority. Instead of a list of exceptions, the draft Bill simply
provides that rights may only be limited by laws relating to periods of
public emergency or "as may be demonstrably justified in a free and
democratic society". I ask, when is the Charter going to be passed?
The Bill would remove a serious flaw in the 1962 Constitution Section
26(8) declares that nothing contained in any law in force before 1962
can be held to be inconsistent with the provisions of Chapter III. In
other words the pre-1962 colonial laws were assumed to conform with
the rights contained in the Constitution, so that only laws passed after
1962 could be challenged as unconstitutional. This provision freezes
constitutional rights in the mould which was shaped up to 1962. It
makes no allowance for the possibility that Jamaican judges might find
that pre-independence laws were less than perfect in their protection
of human rights. Among the laws which cannot be challenged because
of this provision are the Flogging Regulation Act which permits flogging
as a punishment, and the sections of the Offences Against the Person
Act which criminalise homosexual acts. Unfortunately the Bill has a
new saving clause which freezes anything done under any existing law
relating to sexual offences, obscene publications, and offences regarding
the life of the unborn. Some special interest groups have been at work.
It just shows that Constitutions, like any other laws, are the product of
compromise.
With all its shortcomings. Chapter III of the Constitution does
guarantee most of the essential freedoms which underpin a democratic
society. It protects the right to life, liberty and the security of the
person; the right not to be subjected to torture or inhuman or degrading
punishment or treatment; the right not to have property seized or
premises entered; the right to a fair trial; and the rights of freedom of
religion, expression and association. But does the reality conform to the
promise of the law?
Taking stock of the state of human rights in Jamaica today, looking
at how far Jamaicans actually enjoy their fundamental rights and
freedoms, the picture is uneven, sometimes positive and sometimes
appalling.
On the positive side, freedom of speech in Jamaica is alive and
well People in high places are criticised and often vilified on a daily
basis on talk shows and news programmes. There are some aspects of
the libel laws which need reform, but in general, having represented
both claimants and media houses, I believe that the law strikes a good
balance between the right of free expression and the need to protect the
individual from character assassination.
Freedom of association is well developed, so that trade unions, human
rights groups and numerous professional and social organisations are
part of the life blood of Jamaican society. In an era when workers' rights
are under constant threat, our laws relating to labour relations and
industrial disputes have prevented major strikes and have effectively
balanced the rights of the employer and the dignity of the worker.
Freedom of religion is enjoyed by the adherents of thousands of
churches and other places of worship. I was able to uphold the freedom
of religion of a prison inmate in the case of Kevin Hall, who wanted to
join the Church of Haile Selassie I, a Rastafarian church. The ministers
of the Church were only able to see him as ordinary visitors, which
meant a few minutes shouting through a grille in conditions of minimal
privacy. The ministers of all the Christian churches had the facility of
using the prison chapel to conduct services, but this was denied to
the Rastafarians. I brought a constitutional motion complaining that
Mr. Hall's right to freedom of religion had been violated. Shortly before
the case was due to be heard the government's attorneys suggested
a settlement. A solemn agreement was reached which recognised the
Church's right to hold services in the prison on the same terms as other
churches. Assurances were given that ganja would not be used in the
services. As a result, there is now a service taking place every month in
the St. Catherine Adult Correctional Centre, attended by several dozen
court established by law. I want to say clearly, that the Jamaican judges
are definitely independent, they are generadly impartial, and they try
to be fair. When they fail there is a good prospect of getting justice
on appeal. But there is a dreadful problem with the four words I left
out, "within a reasonable time". The system has become clogged with
overload and weighed down by inefficiency. Three years is not unusual
for an accused person to be in custody awaiting trial. It can and must
be improved. The civil justice system was recently reformed by the
introduction of mediation, where settlements can be reached at an early
stage, and by case management conferences where a judge oversees
the preparation for a trial. As a result the delays in getting a case heard
have reduced from three years to one year or less. Case management
in criminal cases is now being introduced, and we must all assist in
working the new system.
In the face of all the difficulties I constantly urge my colleagues in
the legal profession not to despair. The system may be slow but it has
not broken down. The judges must be given credit for presiding over
a court system which retains the essential hallmarks of justice. There
are younger judges coming through the system who give me confidence
in the future because of their independence of mind and their legal
ability. Chief Justices Wolfe and McCalla have shown commendable zeal
in getting the system to work efficiently, including getting the courts to
start on time. The judges of appeal have a gruelling workload, which
has led to delays in the writing of judgments; but the quality of their
reasoning remains high, and several of their judgments in recent years
have been praised by the Privy Council.
That is why I agree with those who have said that if there is an issue
affecting the constitutional rights of the citizen, whether it arises in case
of extradition or in any other case, it normally should be, and can safely
be, left to the courts of law to determine. The State has never been a
reliable or consistent interpreter of the rights of the individual.
But the judges can only uphold human rights in cases which are
brought before them. If those whose rights are abused cannot get
representation, then justice is an unattainable fantasy for them. We
must look not only at the quality of justice, but at the extent of access
to justice.
I see hope in recent developments in Jamaica which have widened the
possibilities of justice. The introduction of the post of Public Defender
in 2000 was a brilliant brainchild of the Hon. Edward Seaga. The
between men. Protestants and Catholics were at war at the time, but
they agreed about gays. I took the case to the European Court of Human
Rights under Article 8 of the European Convention which guaranteed
the right to respect for one's private and family life. The Court ruled by
fifteen votes to four that my client Tiad suffered and continues to suffer
an unjustified interference with his right to respect for his private life'.
Shortly afterwards the British Government changed the law in Northern
Ireland. It was a classic case of the human rights of the individual being
upheld by the judiciary in a hostile and prejudiced political environment.
Remember always that human rights are needed most by those who are
the most unpopular.
Secondly, we still have the death penalty, even though it is now
rarely imposed by the courts and has not been executed since 1988. I
believe it to be a violation of the right to life for the state to kill a person
with deliberate intent. I rejoice that there have been so many limitations
on the carrying out of the death penalty, and that I have not had to
suffer the pain of seeing a client executed. I did have a client who had a
warrant of execution read to him, to be carried out in the following week.
I visited him in the death cell which is situated within the same small
compound as the gallows. He had the appearance of a man who was
already half dead. The colour and lifeblood appeared to have drained
from his face as he sat alone in the tiny cell. Fortunately, the warrant
was stayed pending a further appeal.
The world is moving away from the death penalty as being either
useful or moral as a sentence for crime. The only countries in the
American continent to retain it are the United States and Guatemala.
Does Jamaica want to follow the sick example of the United States,
where there are now 3,297 prisoners on death row, all poor, many black,
many of them there for decades?
Look instead at the example of the countries of Africa from which
the forebears of most Jamaicans came. Half of them have abolished the
death penalty. In the case of Mankwanyane in which the South African
Constitutional Court declared the death penalty to be unconstitutional.
Justice Sachs drew on the evidence of pre-colonial African traditions.
He examined the history of the indigenous South Africans and found
that the death penalty was hardly ever imposed. Their reasoning was,
why sacrifice a second life for one already lost? It was the Dutch and
the British who imported cruel forms of execution into Africa. Death by
hanging was the fate of three of Jamaica's national heroes: Sam Sharpe,
Paul Bogle and George William Gordon. Must Jamaica continue to copy
the colonial barbarians?
The judicial system is not infallible and mistakes can be made. I
represented some of the Irish defendants known as the Birmingham
Six and the Guildford Four, who would undoubtedly have been hanged
if the death penalty had been available when they were convicted. The
whole of Britain was revolted by the crimes which they were found guilty
of committing. Public clamour would have demanded their death. But
years later they were all found to have been innocent. The Jamaican
system, starved of resources as it is, is still more fallible. Witnesses can
lie, and confessions can be fabricated, and identification evidence can
be mistaken. If the death penalty is carried out, a miscarriage of justice
can never be rectified.
I have also learned in Jamaica that the capacity of the individual
for redemption and rehabilitation is extraordinary. I have had clients
who have spent years on Death Row, who would have been hanged if
the law had not been changed. Many are now on parole and have not
re-offended. Some who are still in prison have been given weekend leave
or have been employed outside the prison. I have met artists, musicians
and counsellors. In their character they are not the same people who
committed crimes of violence ten or twenty years ago. Their lives, which
the court had ordered to be ended by the noose, have turned out to have
real value.
I believe that the death penalty feeds that desire for retribution which
has warped Jamaican society. Hanging legitimises the idea that it is
all right to take life by way of revenge - which is precisely the mindset
which we condemn when it leads to gang murders in the inner city or
mob killings in the country villages. It is not a deterrent to murder, since
some of the countries with the highest crime rates are also countries
which retain the death penalty. Rather when the state kills, it teaches
people that violence is the way to deal with injustice. It is the ultimate
form of oppression, to eliminate those who are perceived as the enemies
of society. Jamaicans with their history of oppression should know
better than to support this barbarity. I look forward to the day when
Jamaicans and other Caribbean peoples will renounce the death penalty
entirely, recognising that there are other forms of punishment for crime
which benefit society through the rehabilitation of the individual soul.
But I will not end on a grim note. On this issue, as on other issues
concerning human rights, there have been reforms in the law, and there
has always been a passionate debate. That is why I retain the belief that
the glass of human rights in Jamaica is half full and not half empty.
The Jamaican people have a deep sense of justice. They expect the State
to dispense justice, and are angry when it does not. They expect the
attomeys-at-law to be their effective weapons in the fight for justice.
We, attorneys-at-law of the present and future, are a key part of the
solution to Jamaica's human rights problems. We need the patience to
uncover the facts, the creative intelligence to shape the law. That is the
excitement of the practice of law, to use intellectual rigour to resolve
a human tragedy, I ask you to match your brains and your humanity
to secure the real enforcement of human rights in this troubled but
beautiful land.