Law and Human Services

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Law and Human Services

• Part 1, Presentation 4 Rights and Freedoms in
  Commonwealth Constitutions
• Prepared by Tania Chambers

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Situating Commonwealth Constitutions

• 1962 timing has impacted the content of
  Commonwealth Constitutions
• Influences
• Broadly, practice of codifying and entrenching
  rights represents a divergence from British
  common-law tradition
• Historically trend began with American
  Constitution, but by 1962 was reflected in
  constitutions of post-commonwealth African
  Constitutions, which were reputedly based on
  European Human Rights conventions
• Reflects the language and of the International
  Bill of Human Rights

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Significant Features

• Focus on civil and political rights
• Limited scope of protection from discrimination
• Entrenchment of rights and freedoms
• Savings clause

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1. Focus on Civil and Political Rights

• Articulate civil and political rights, largely to
  the exclusion of economic, social and cultural
  rights
• Other Caribbean Constitutions (not Jamaicas)
  feature a preamble that contextualises human
  rights
• Broad statements in s. 13 of the individual
  fundamental rights and freedoms recognised by
  constitution.
• S.13 not by itself enforceable, but most of its
  provisions are repeated in justiciable sections
  of chapter 3.

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1. Focus on Civil and Political Rights

• Protection of Right to Life (s14)
• Protection from intentional deprivation
• Exceptions
• By operation of law (capital punishment)
• Reasonably justifiable use of force (in defence
  of life and property in preventing the
  commission of a crime in effecting a lawful
  arrest)
• Practical Issues
• Police killings
• Abortion
• Suicide and consensual murder

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1. Focus on Civil and Political Rights

• Protection of Personal Liberty (s15)
• Exceptions
• Unfitness to plead
• Court order or sentence
• Reasonable suspicion of commission of a crime
• Quarantine
• Care or treatment of mental illness, drug abuse
  etc.
• Rights upon arrest
• Right to be informed of reason for
  arrest/detention
• Right to face the court without delay
• Practical Issues
• Rights of the mentally ill (Ivan Nettleford case
  study)
• Agana Barrett case (Vasciannie, p. 68)

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1. Focus on Civil and Political Rights

• Freedom of Movement (s16)
• Covers residence, entry into Jamaica, immunity
  from expulsion
• Exceptions
• Lawful detention
• Defence, public order, public safety, public
  morality, public health
• Non-citizens deportations
• Zoning restrictions
• Security forces
• Extradition
• Practical Issues
• Refugee rights

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1. Focus on Civil and Political Rights

• Protection from torture, inhuman or degrading
  punishment or treatment (s17)
• Exceptions
• Punishment, by virtue of pre-existing law
• Practical Issues
• Overcrowding in jails and prisons (Agana Barrett)
• Pratt and Morgan case

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1. Focus on Civil and Political Rights

• Protection from compulsory acquisition of
  property (s18)
• Exceptions
• Under law providing for compensation
• Competing interests
• Statutory acquisition related to taxes
  penalties stray animals administration of
  trusts and estates fulfilment of contract,
  mortgage, lease etc nuisance evidence mining
  etc.
• Practical Issues
• Care and maintenance of property while in
  evidence
• Squatter rights
• Proceeds of Crime Act

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1. Focus on Civil and Political Rights

• Privacy Rights (s19)
• Search of person or property without consent
• Entry into ones premises
• Exceptions (statutory)
• Public safety, morals, defence, health
• Public revenue, town planning,
• Rights of entry to public authorities
• Prevention or detection of crime
• Protection of rights and freedoms of others
• Practical Issues
• Wider breadth and complexity of privacy issues in
  other territories, particularly as relates to
• Internet databases
• Hidden cameras

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1. Focus on Civil and Political Rights

• Natural Justice Rights/Protection of the Law (20)
• Right to a fair hearing within reasonable time
• Right to a public hearing (with limitations)
• Presumption of innocence
• Right of an accused to preparation of defence,
  examination of witnesses, assistance of an
  interpreter
• Protection for retroactive offences
• Protection from double jeopardy
• Exceptions (statutory)
• Public emergencies
• Practical Issues
• Right to legal counsel not effectively protected
  
• Robinson v. R, (1985) 22 JLR 276

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1. Focus on Civil and Political Rights

• Freedom of conscience, thought and religion (21)
• Freedom to have and to change
• Alone and in community private and public
• Freedom to manifest, propagate, worship, teach,
  practice, observe
• Freedom from forced observance within educational
  setting balanced against the right of a
  denomination to incorporate religious teachings
  in its educational programmes
• Cannot be compelled to take an oath
• Exceptions
• Consent
• Public policy
• Unsolicited intervention of other religions
• Practical Issues
• Unlawful sacraments (ganja and Rastafarian
  beliefs)
• King v. R right to take oath based on any thing
  that binds ones conscience

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1. Focus on Civil and Political Rights

• Freedom of expression (22)
• To hold opinions, impart ideas and information
• Privacy rights freedom from interference with
  correspondence
• Exceptions
• Public policy
• Protection of reputations, rights and freedoms of
  others
• Confidentiality rights
• Regulation of telecommunications
• Restrictions imposed on public exhibitions or
  entertainment
• Restrictions on public officers security forces
• Practical Issues
• Pornography vs. Art

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1. Focus on Civil and Political Rights

• Peaceful assembly and association (23)
• Right to join trade unions
• Exceptions
• Public policy
• Protection of rights and freedoms of others
• Restrictions on public officers security forces
• Practical Issues
• Roadblocks

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2. Limited Scope of Protection from
Discrimination

• Protection from discrimination in laws or acts of
  public officials (24)
• Prima facie or in its effect
• Excludes gender-based discrimination
• Excludes several aspects of family law (divorce,
  marriage, adoption etc.)
• Does not apply to state of emergency
• Does not apply to tax laws
• Does not protect non-citizens
• Does not cover entry requirements for public
  service

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3. Entrenchment

• Time limits (s. 50) of 3 months respectively
  between
• Introduction and debate
• Debate and passing
• Supported by not less than two-thirds of the
  members of each House (s.51)

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3. Savings Clauses

• Laws existing before constitution not deemed
  inconsistent with or in contravention of chapter
  3 s.26(8)
• Places the onus of modernising laws to fit within
  the parametres of fundamental rights and freedoms
  on parliament, not judiciary