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  • FD13 A
  • Law Governance Economy And Society
  • By Conway Blake

What Are Human Right?
  • Rights and freedoms which every person is
    entitled to enjoy …. Osburns Law Dictionary
  • The freedoms immunities and benefits that,
    according to modern values (esp. at international
    law), all human beings should be able to claim as
    a matter of right in the society in which they
    live.- Blacks Law Dictionary

Sources of Human Rights Law
  • CONSTITUTIONS (Bill of Rights or Chapters on
    fundamental rights).

International law
  • This is the paramount source of human rights.
    However many of the international norms have
    their genesis in domestic legal systems. Since
    the end of WWII there has been a substantial
    recognition of human rights at the international
    law level. Thus in 1945, much of the impetus for
    human rights promotion and protection saw its
    origins in the United Nations and its agencies.

General Conventions
  • United Nations Charter
  • Universal Declaration on Human Rights
  • International Covenant on Civil and Political
  • International Covenant on Economic, Social and
    Cultural Rights
  • American Convention on Human Rights

Other Conventions
  • Refugees Convention (1951).
  • International Convention on the Elimination of
    All Forms of Racial Discrimination.
  • The Convention on the Elimination of All Forms of
    Discrimination Against Women.
  • The Convention on the Rights of the Child (1994).

Application of International Human Rights Norms
  • Rights contained in Conventions are not
    automatically enforceable in local courts. Due to
    the doctrine of dualism international
    conventions must be incorporated into legislation
    before they become apart of the local law, and
    therefore can be the basis of litigation in the
  • Caribbean states rarely incorporate conventions,
    they however form a policy framework within which
    states are governed and laws made.
  • International human rights norms also inform
    constitutional interpretation.

International Human Rights Tribunals
  • Inter-American Commission on Human Rights.
  • United Nations Human Rights Committee.
  • These tribunals hear complaints by individuals
    claiming that the state has failed to ensure
    rights ensured to them pursuant to International
    Human Rights Conventions. However, these bodies
    merely make recommendations, and cannot impose
  • Jamaican citizens can no longer bring complaints
    to the U.N. Committee.
  • Trinidadian citizens can no longer bring
    complaints to the Inter-American Commission.

The Constitution/ Bills of Rights
  • A Bill of Rights first occurred in a West Indian
    Constitution in the 1961 Guyanese Constitution,
    and was followed in 1962 by those in the Jamaica
    and Trinidad Independence Constitution.
  • They are modeled on the European Convention for
    the Protection of Human Rights and Fundamental
  • They contain substantive litigious rights, and
    provides for redress for breaches of these rights
    in the courts of law.

Bill of Rights
  • Chapter III of the Jamaican Constitution
  • Fundamental Rights and Freedoms
  • Section 13 of the Jamaica Constitution states
  • Whereas every person in Jamaica is entitled to
    the fundamental rights and freedoms of the
    individual, that is to say, has the right,
    whatever his race, place of origin, political
    opinions, colour, creed or sex, but subject to
    respect for the rights and freedoms of others and
    for the public interest…

Particular Rights In Constitutions of the
  • Right to Life
  • Freedom of Movement
  • Protection from inhuman Treatment
  • Privacy
  • Protection of the Law
  • Protection from Arbitrary Arrest
  • Freedom of
  • Conscience
  • Expression
  • Association
  • Anti-Discrimination norm.

Application of the Bills of Rights
  • No right is absolute, but are subject to the
    rights of others and to considerations of public
    safety, morality etc.
  • The Bills attempt to achieve a delicate balance
    between the rights of the individual and the
    wider society.
  • The Bills of Rights reflect the state action
    doctrine i.e.
  • the rights are only enforceable against the
    state, not against private individuals.
  • Savings Law Clauses may limit the application of

  • Are the Provisions in the Bill of Rights
    Comprehensive, providing protection of all rights
    worth protecting?
  • Do you agree with the calls to include provisions
    in the Bills to protect people on the basis of
    language and sexual orientation?

Human Rights Legislation
  • There is a general paucity of such legislation.
  • There are generally piecemeal in nature, and do
    not form a comprehensive scheme.
  • Many more needed to deal with novel situations,
    which may not be addressed by bill of rights.
  • Eg. Equal Opportunity Act St. Lucia and TT
  • Employment Legislation protecting inter alia
    maternal rights, equal pay, Non-discrimination

Theoretical Issues
  • Universality vs. Cultural Relativity
  • Are Human Rights universal in their application,
    or should they differ in their content and
    application depending on the geographical or
    cultural space?
  • Does this notion of Relativity negate the concept
    of the universal human experience, which informs
    human rights?

Classification of Rights
  • Civil Political Rights
  • vs.
  • Social Economic Rights
  • Civil Political Rights- Those requiring
    restraint on the part of the state. They are also
    regarded as rights that can be implemented
    immediately, irrespective of prevailing economic
  • Economic Social Rights- are those likely to be
    introduced progressively, and will by their
    nature, vary in character according to economic
    circumstances in the state.

  • In the charged political environment in Jamaica,
    human rights concerns are sometimes conflated
    with partisan political interests, and thus
    become subject to misleading charges and
    countercharges, designed not so much to elicit
    truth and rectification of injury to individual,
    as to advance narrow political perspectives…
  • Rights advocacy is often perceived as synonymous
    with opposition to the death penalty…
  • -Prof. Stephen Vasciannie- International Law and
    Selected Human Rights in Jamaica.

Lobbying and Advocacy
  • Individual and groups in Society work in the
    interest of humanitarianism and fairness, such
  • Independent Jamaica Council on Human Rights
  • Jamaicans for Justice
  • Families Against State Terrorism
  • J-FLAG
  • What does their presence tell us about the
    Jamaican Society?

Selected Human Rights Issues
  • Freedom of Conscience
  • Dennis Forsythe v D.P.P.
  • The appellant was a practicing member of the
    Rastafarian faith. He was arrested and charged
    with dealing in ganja, possession of ganja and a
    chillum pipe for use in connection with the
    smoking of ganja.

  • He moved the court under section 25 of the
    Constitution for a declaration that section 21
    thereof had been contravened in that the acts
    constituting the offences charged were part of
    the sacrament of and essential practices of his
    Rastafarian faith.
  • Sec. 21(1) Constitution of Jamaica
  • Except with his own consent no person shall be
    hindered in the enjoyment of his conscience, and
    for the purposes of this section the said freedom
    includes freedom of thought and religion….and to
    propagate his religion or belief in worship,
    teaching, practice and observance.

Decision of The Supreme Court
  • Held
  • Section 26(8) of the Constitution creates an
    exception to the general rule of the law alleged
    to be inconsistent with the Constitution that
    was in force immediately before the appointed day
    and the alleged inconsistency is with a provision
    of Chapter III…Thus even if sections of the
    Dangerous Drugs Act had been inconsistent with
    the Constitution, they would nevertheless have
    been saved from invalidity by section 26(8).

Right to Equality
  • The applicant and her parents were Muslims. In
    1994 the applicant passed the common entrance
    examination enabling her to be registered as a
    pupil at the secondary school of her choice. The
    school in question (which had been established in
    1902 and had become a public school under the
    Education Act) had school regulations duly made
    in accordance with the Act which required pupils
    to wear the school uniform. The applicants
    parents asked the school to permit the applicant
    to wear dress conforming to the hijab. The
    principal of the school and its board of
    management refused to allow any such exemption.

Mohamed v Moraine
  • The applicant attended school wearing a modified
    version of school uniform which conformed to the
    hijab but she was not allowed to attend classes
    and was in effect suspended. The applicant
    instituted proceedings for judicial review of the
    decision to suspend her and also claimed redress
    for contravention of her constitutional rights,
    in particular those under section 4(a) (right to
    enjoyment of property), (b) (right to equality
    before the law) and (d) (right to equality of
    treatment by public authorities) the Constitution
    of Trinidad and Tobago.

Decision of the Court
  • Ordering that the decision of the respondents be
    quashed, that the respondents had applied the
    school regulations inflexibly and had not taken
    into account the psychological effect on the
    applicant of refusing to allow her to conform to
    the hijab (to which exception was not taken by
    the Ministry of Education) there was no evidence
    to support the respondents plea that conforming
    to the hijab would be conducive to indiscipline
    or would erode the sense of tradition or loyalty
    to the school, nor that it would accentuate
    distinctions between students from affluent homes
    and less affluent ones the respondents in having
    regard to the fact that the applicant could apply
    for admission to another school and to their fear
    that others might follow the example to seek
    exemption from the requirements as to school
    uniform had taken irrelevant factors into
    account in these regards the decision of the
    respondents had been an unreasonable exercise of
    their powers conferred by the Education Act and
    was unsustainable.

The Right to Life
  • Section 14, Jamaican Constitution
  • No person shall intentionally be deprived of his
    life save in execution of the sentence of a court
    in respect of a criminal offence of which he has
    been convicted.
  • When Does this life begin?
  • See Sec. 72 of the Offences Against the Persons
    Act which prohibits abortion.

Law and Practice The Right to Life
  • At very least, these figures prompt serious
    questions as to whether members of the police
    force have wilfully participated in the
    assassination of Jamaican Citizens under the
    guise of State authority. ..There is scope for
    the view that police Killings being a fundamental
    breach to the right to life…

The Death Penalty
  • The Constitutionality of the death penalty in
    Jamaica has never been challenged, as it is
    contain in laws that were passed before
    independence, and are hence protected from being
    challenged by virtue of the SAVINGS LAW CLAUSE.
  • Constitutional motions have however been brought
    to challenge the manner in which the death
    penalty is imposed.

Inhuman and Degrading Punishment
  • Pratt and Morgan v AG of Jamaica
  • Men were convicted of Capital Murder, and were on
    death row for over 13 years awaiting execution.
  • They appealed to the JCPC claiming that such a
    situation constituted inhuman and degrading
  • The JCPC established that, in capital cases, if
    the time elapsed between the sentence of death
    and execution exceeds five years, there will be
    strong grounds for believing that the delay was
    such as to constitute inhumane or degrading
    punishment. And In such cases, it is highly
    likely-if not inevitable that persons on death
    row will have their capital sentences commuted to
    life in prison.

Neville Lewis v AG (Jamaica)
  • In this case the JCPC commuted death sentences
    against six appellants to life imprisonment, on
    constitutional grounds. The issues were
  • What rights do convicted murderers have when they
    petition the Jamaican Privy Council for mercy
    (following the failure of all their appeals) ?
  • Whether such convicts have a right not to be
    executed before an external human rights
    agencies, has finally responded to their

Neville lewis v AG
  • It was decided that in death penalty cases there
    are compelling reasons why the Jamaican Privy
    Council should be required to give notice to each
    condemned man concerning his plea for mercy. The
    condemned man should also have the opportunity to
    see material presented to the Jamaican P.C., and
    comment thereon.
  • This decision was made in the context of
    principles of fairness and natural justice, and
    by reference to human rights norms in
    international conventions to which the state was

Neville lewis v AG
  • The JCPC further held that the right to
    protection of the Law provided for in section
    13 of the Constitution connotes that condemned
    men are entitled to have access to the external
    human rights processes, even though the result of
    such processes are merely recommendatory, and
    these processes are not incorporated in local law.

Lambert Watson v The Queen
  • On 19 July 1999 the appellant was convicted in
    Hanover of the murder of his common law wife, and
    his child. He stabbed them to death.
  • By virtue of the Offences Against the Persons
    Act, this was Capital murder, and therefore the
    penalty was death.
  • The Act made it mandatory for persons convicted
    of capital murder to be executed.
  • The appellant challenged the mandatory nature of
    the death penalty…claiming it was inhuman and
    degrading punishment, and inconsistent with the
    Fundamental Rights provisions in the

Lambert Watson v The Queen
  • It was argued that the mandatory death penalty
    was enacted in law in Jamaica before
    independence, and therefore saved by the savings
    law clause, hence making it immune from
    constitutional challenge.
  • The law in relation to the death penalty was
    re-enacted in a revised piece of legislation, and
    therefore no longer a pre-independence law, and
    therefore not immune from challenge.

Lambert Watson v The Queen
  • It was held that a mandatory death sentence
    negated human dignity, in that a man was
    sentenced to death without having his particular
    situations heard and addressed. Thus it was held
  • In this case…basic humanity requires that the
    appellant should be given an opportunity to show
    why the sentence of death should not be passed on

Has The Death Penalty been Abolished?
  • What has been the cumulative effect of these
  • Look at the recent article in reference to the
    Governments sentiments on the death penalty.
  • Do you agree with these decisions?

  • Where do we go from here?

  • Review the definition and sources of Human
    Rights Law.
  • Review the classification of Human Rights.
  • Assess whether the bill of rights in your
    constitution needs to be expanded to encompass
    new rights.
  • Consider the need for, work and impact of human
    rights groups in Jamaica.
  • Examine the right to life, in the context of
    abortion and recent statistics on police killings
    in Jamaica.
  • Consider the right to freedom of conscience in
    context of Rastafarianism, and the calls to
    decriminalize ganja.
  • Consider the extent to which certain minority
    groups in the society such as the Disabled,
    Homosexuals and Rastafarians enjoy or are
    deprived of certain rights. Is this deprivation
  • Review the savings law clause and its effects
    in human rights cases.
  • Consider factors which may limit the application
    and guarantee of Human Rights in the Caribbean.
  • Review the Death Penalty Cases.
  • -
  • NB/ This presentation is long, so when printing
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