CHARTER OF RIGHTS FORUM

27^TH APRIL 2010

BY DAVID WONG KEN

The GAME of

LIFE IN JAMAICA

In preparation for this presentation I enquired of a number of young persons about their understanding of:-

-      The Constitution

-      The Charter of Rights

None of them had any reasonable understanding of what those were.  Next I enquired about their understanding of Human Rights, and upon giving examples such as the right of free speech.  The right to freedom of movement and the right against arbitrary detention and arrest, they responded that they were aware of those rights but said they not apply to ghetto youth.  When I asked them if they knew that those rights were not given by government, but that they owned those rights from the moment of birth until the time of death, they laughed.  They laughed cynically and said that governments never give those rights but governments take them away.

I want you to understand that the persons that I spoke with are average Jamaican youth.  These are persons that you would expect to see working at gas stations, in bars, as trade-persons, in banks and offices etc.  These are the persons about whom we say that the future belongs.  About whom we speak of as being our greatest asset, and upon whose shoulders the future of the country rests.

I don’t think that those young persons who had no reasonable understanding of the Constitution or the Charter of Rights and who were cynical about the applicability of human rights were the exceptions.  Rather I get the feeling that in their lack of understanding they are representative of the majority of Jamaicans.

I make this point to say that any effort that has been made to sensitize Jamaicans about their Constitution and their Charter of Rights has been wholly inadequate. Further to the extent that there have been attempts to bring the discussion to the people, the language of those discussions has been inappropriate.  It has been inappropriate because it has not inspired the people to join the discussion.

One particularly bright young lady with whom I spoke asked me to explain to her what the Constitution was.  I told her that the Jamaican Constitution was nothing more than the Rules of the game.   It is supposed to be the Rule established by citizens of Jamaica on how to play the game of LIFE IN JAMAICA.  It sets out how the state is organized, it sets out how governments are elected and the awesome power given by the citizens to governments to make law.  In short the Constitution tells government what it is they can legally do.  Her retort was to say that government could then pass any law to make whatever wrong they did – legally right.  I told her that the Charter of Rights were the rules that protected the citizens against the abuse of power by government.  The young man beside her butted in to remind me that Charter of Rights did not apply to ghetto youth.

In response to a record number of murders, the call for the country to unite against violent crime can be heard from every special interest group, the private sector, churches, government and opposition.  You hear it on the talk shows daily.  What we need is for the country to unite against crime.  But should anyone calling for unity really expect a ghetto youth who does not have an understanding of the RULES of the game of LIFE IN JAMAICA to unite.  Is it reasonable to expect that a person, who does not understand the rules, by which the state is organized, will be faithful to the state and pledge allegiance to it, and pay taxes and abide by its laws?   In essence to play by rules that has not been explained.  Worse when such a person is of the opinion that governments take away human rights.

I maintain that Jamaica does not have a crime problem.  What we have are social problems.  Problems of governance, problems where the citizens do not all buy into the same ideals.  Problems arising because there is no common understanding of the rules by which the state is organized.  Crime is the pus that tells us we have these ailments it is the manifestation of the problems not the cause of them.  As long as we continue to misdiagnose the problem as crime, we will continue to apply the wrong treatment and we will not find a cure.

In 1993, the government of Jamaica Reconstituted a Constitutional Commission whose job it was to study the Charter of Rights contained in the Jamaica Constitution at Chapter 3, Section 13 to 26 inclusive, entitled Fundamental Rights and Freedoms.  In those sections you will find the recital of what may be described as typical Civil rights such as:

-              the right to political opinion;

-              the right to life liberty and security

-              protection against arbitrary arrest

-              protection of freedom of movement

-              protection against inhuman treatment, and so on

By themselves, those fundamental rights and freedoms were inadequate but they provided some protections.  The big problem that exists currently is found way down in the Constitution at Section 50.  Section 50 allows parliament to pass laws that can alter the Charter of Rights.  That means that the Charter of Rights is not guaranteed to citizens.  That of course means that governments can take them away.  We at JFJ shout loudly, that what is provided in the Charter of Rights - PLUS MORE that is not in the Charter of Rights - are rights that people have by virtue of being human.  They are not given by Government and therefore any provision in the Constitution that purports to take them away is fundamentally wrong.  There are situations in which individual rights must be balanced against the rights of other individuals.  That is the role of government.  The problem arises when government regulates the fundamental freedoms and rights not in the interest of the individual but rather in their own self interest.

The Reconstituted Constitutional Commission delivered their Report in 1994. As I understand it, the Reconstituted Commission consulted widely before making their report.  Having read it I am of the opinion that its recommendations for the amendment of the Charter of Rights would have resulted in a much improved Charter, with greater protection for the citizens and that included rights and freedoms omitted in the current Charter.  Apart from specific inclusions in the recommendations the big improvements came by recognizing that fundamental rights were inalienable, that is to say they belonged to people from birth until death and they are not a gift from government.   Specifically it recommended that section 50 be repealed.  The language was simple and easily understood.

In 2009, sixteen years after the Reconstituted Constitutional Commission presented its report the government tabled a Bill entitled, An Act to Amend the Constitution of Jamaica to provide for a Charter of Fundamental Rights and Freedoms.   The content, the arrangement, the philosophy of the Bill bears little resemblance to the recommendations of the reconstituted Constitutional Commission.  My question is WHY?  Why has it taken 16 years to come to parliament?  Why has there been no public education on the recommendations? Why has the Parliamentary Joint Select Committee appointed to review the Commission’s Report chosen to disregard the recommendations of the Commission?

In the absence of answers I assume that the members of the Joint Select committee who all aspire to be governors DO NOT WANT TO INFORM THE CITIZENS THAT THEY HAVE INALIENABLE RIGHTS.

I urge upon those who wish to govern, to pay attention to the placards of protest.  The recurring theme of which is WE WANT JUSTICE.  It is in government’s long term self interest to get this amendment right. It is not just desirable that a comprehensive modern Charter of Rights be included in the Jamaican Constitution, it is fundamental to our achieving lasting peace and prosperity that this be done.  It is equally important for citizens to be informed of those rights and encouraged by the court to insist upon them whenever they come into contact with organs of the state.  Only when the average Jamaican understands the rules of this game that is Life in Jamaica, can he be expected to play in accordance with those rules.  Only when the average Jamaican is convinced that the Charter of Rights applies to him in the ghetto, does the society stand a chance of getting UNITY and BUY-IN so that we can begin to reduce crime. Until then, the dream of lasting peace and prosperity will remain a fleeting illusion, to be pursued but never attained.

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