Lecture 5 FOUN 1301 Human Rights (PDF)

Foun 1301 = The protection of fundamental human rights in the Caribbean and globally. Unit 1 George A. Pilgrim B.A M.Sc. 1  Background The involvement of the...

Foun 1301 = The protection of fundamental human rights in the Caribbean and globally. Unit 1 George A. Pilgrim B.A M.Sc. 1  Background The involvement of the United Nations in human rights matters goes far beyond its Charter. In 1948 it passed the landmark resolution, the Universal Declaration of Human Rights (Brownlie 1992: 21). Such was the impact o f this instrument that it could be validly argued that it has served as the inspirational basis o f every human rights treaty concluded subsequent to 1948. 2  Background In the years following the issuing of the Universal Declaration of Human Rights, the United Nations continued its work of developing human rights even further. Under its auspices the International Covenant on Civil and Political Rights (Brownlie 1976 :114) and the International Covenant on Economic, Social and Cultural Rights (Brownlie 1976 125) were concluded, thus strengthening the protection o f human rights at the international level. 3  More recently, the United Nations has selected the more vulnerable groups in society for special attention. For example, treaties have been concluded for the protection of indigenous peoples, racial minorities, women and children. In the Caribbean a treaty does not Backgroun automatically become part of municipal Jaw (Anderson 1998: 75), but its performance d may require the enactment of legislation or a change in government policy. In Trinidad and Tobago, legislation was recently passed abolishing corporal punishment in schools for the purpose of enabling the government to discharge its treaty obligation. 4  In the Caribbean, the common law provided safeguards for basic rights and fundamental freedoms which were further strengthened by a Bill o f Rights Backgroun (Alexis 1997 : 138) enshrined in the various independence constitutions. d If the Bill of Rights in the Constitution of any Caribbean state is narrowly construed, it may be argued that its thrust is the protection of the individual, and not that of civil society. 5  Such an interpretation would be unfortunate because it confines itself to the creation of the rights and ignores their effective exercise and enjoyment. Since rights such as the freedom of Backgroun religion, the freedom of speech, the freedom of association and freedom o f d the press can only be meaningfully enjoyed by the individual in concert with others, it is contended that such rights are equally applicable to civil society. 6  The typical Commonwealth Caribbean constitution (sometimes referred to as the Westminster Export-Model Constitution) will set out a fairly broad range of civil and political rights in a separate chapter. These civil and political rights will invariably include, among others, (a) The Right to Life, (b) Freedom from Inhuman or Degrading Punishment or Treatment, (c) Freedom of Thought, Conscience and Religion, (d) Freedom of Expression, (e) The Right to a Fair Trial, The Rights in Practice (A Broad Overview) 7  (f) Freedom of Movement, (g) Freedom from Discrimination on certain grounds, (h) The Right to Property, (i) Freedom from Arbitrary Arrest or Detention, and (j) The Due Process of Law (including the Right to a Fair Trial). The Rights in Practice (A Broad Overview) 8 PROTECTION OF FUNDAMENTAL CHAPTER III Fundamental rights and freedoms of the RIGHTS AND individual. Protection of right to life. FREEDOMS OF Protection of right to personal liberty. Protection from slavery and forced THE INDIVIDUAL labour. Protection from inhuman treatment. Barbados Protection from deprivation of property. Protection against arbitrary search or Model entry. 9  PROTECTION OF Provisions to secure protection of law. Protection of freedom of conscience. Protection of freedom of expression. FUNDAMENTA Protection of freedom of assembly and association. L RIGHTS AND Protection of freedom of movement. Protection from discrimination on grounds of race, etc. FREEDOMS Enforcement of protective provisions. Time of emergency. OF THE Saving of existing law. Interpretation. INDIVIDUAL 10  Given the past history of the Caribbean, it is a truism that it has not had a long tradition of good governance and human rights observance. On the contrary, the social landscape of the Caribbean was blighted by slavery and indentureship. Since the slave was regarded as chattel, it stands to reason that he could not be a subject of the law capable o f having basic rights and freedoms. In short, he was deprived o f his humanity and ironically he could not be the beneficiary of rights which were considered to be inalienable. Caribbean experience 11  After the abolition of slavery, the indentureship system was introduced, but this is not Caribbea considered to be a significant improvement on the practice of n slavery because the indentured servant did not enjoy basic rights and fundamental freedoms. experien Therefore, the general non- observance of human rights with ce respect to the majority of the members of the society makes it otiose to speak of good governance in that era. 12  On the political front, colonial rule was inconsistent with the principle of the self- Caribbea determination of peoples. The administration in the colony was ultimately responsible to the n British Government. Consequently, important experien elements ofgood governance such as accountability and effective participation in the ce decision-making process were lacking. The very remoteness of government was a negation of good democratic practice. 13  In general, the human rights record has been good since independence, but a few areas of concern remain. Caribbea Arguably, the most hotly debated human rights issue in the Caribbean is the right to life (McIntosh 1996: n 63-68). The death penalty is compulsory for the crime of murder but the experien Judicial Committee of the Privy Council which has final appellate jurisdiction for most Commonwealth ce Caribbean countries has been imposing constraints on the carrying out of the death sentence (Pratt and Morgan 'IS A.G. for Jamaica 1993). 14 Caribbean experience According to the International Covenant on Civil and Political Rights there are rights from which no derogation can be made, but the right to life is not among them. This may appear to be somewhat strange because it can be argued that the right to life should be pre- eminent on the list of rights. Moreover, it seems to defy logic that torture amounts to inhumane treatment but what may tum out to be its most extreme form, deprivation of life, is not so classified. Be that as it may, the Covenant provides that the death penalty may be imposed if due process oflaw is followed. 15 Caribbea The Privy Council's attitude to the death penalty is largely determined by opinion in Britain n and the rest of Europe. The practice among European states on the abolition of the death penalty, is almost uniform and experien their policy is to persuade other states to follow their practice. Caribbean opinion appears to be in support of the death penalty ce and in the context of governance it should be taken seriously. 16  Basic rights and fundamental freedoms are enshrined in Bills of Rights of Caribbean Constitutions (McIntosh 1996: 53). This provides additional safeguards, but in the final analysis, the most effective guarantee is the rule of law. In spite o f the small size of Caribbean societies, one hardly hears charges of the independence of the judiciary being compromised. O f course, the debate surrounding the establishment of the Caribbean Court of Justice does reveal a fear on the part of some that the judiciary will not function impartially if the Privy Council ceases to be the final Court of Appeal Caribbean experience 17 Caribbean experience Human rights and the rule of law provide protection against the arbitrary exercise of authority, but issues regarding accountability, transparency and participation rely heavily on a high level of political consciousness and enlightened public opinion. The populace must understand that ultimate power resides in the people and not in a 'maximum leader' Such an understanding will help to shape the kind of politics which is being practised. 18 Institutions The main institutions that assist in ensuring that Caribbean States respect international human rights norms include: The local courts. Usually, there is a hierarchy of courts with the Judicial Committee of the Privy Council being the highest court in a three-tiered appellate system: appeals often go from the High or Supreme Court, to the Court of Appeal, and then to the Judicial Committee of the Privy Council. For two Commonwealth Caribbean countries, the Judicial Committee of the Privy Council has been replaced as the highest court by the Caribbean Court of Justice. 19  Institutions The United Nations Human Rights Committee (for countries party to the ICCPR and the First Optional Protocol to the ICCPR). The Inter-American Commission on Human Rights (for countries party to the American Convention on Human Rights). The Inter-American Court for Human Rights (only Barbados is party to the jurisdiction of this court). Non-Governmental Organizations. In some countries, there are active non-governmental organizations in the area of human rights. There is no significant interference by governments in the activities of these organizations. 20 Sources The Constitution. Generally, Commonwealth of Law Caribbean States have constitutional provisions that set on the out the fundamental rights and freedoms of persons in each Municip jurisdiction. These constitutional provisions show a marked similarity from one country to al Plane another, with most of them owing their origins to parts of the Universal Declaration on Human Rights and the terms of the European Convention on Human Rights. 21 Sources Legislation. In some cases, the rules of a particular of Law treaty will be expressly incorporated into local law. on the So, for example, provisions in the Convention on the Rights of the Child have Municip become part of statutory law pertaining to children in al various Caribbean countries. Plane 22 Sources The Common Law. Various decisions of municipal courts also take into account rules of of Law the common law that protect human rights: see, for example, the writ of habeas corpus. (A on the writ of habeas corpus is used to bring a prisoner or other Municip detainee (e.g. institutionalized mental patient) before the court to determine if the person's al imprisonment or detention is lawful. ) https://www.law.cornell.edu/wex Plane /habeas_corpus 23 Restriction s to be Noted 24  The absence In most Commonwealth Caribbean countries, there is limited of economic, constitutional protection for the social and rights listed in the ICESCR. In practice, in some of the countries, cultural the right to education is assured up to secondary level, and in a small rights. number, the State provides full financial support to students at the tertiary level. 25  The On the positive side, labour rights are absence generally safeguarded in practice, although these rights are sometimes of not constitutionally protected; there is, for example, no right to employment. economic, The general approach concerning economic and social rights appears to social and be that the society should work progressively towards the introduction cultural of entitlements such as universal access to health care and full rights. employment, but these entitlements presently do not amount to “rights properly so-called 26  Not The rights recognized in individual Commonwealth Caribbean constitutions are not absolute. Most of them (e.g. freedom of absolu movement, freedom of expression, freedom of thought, conscience and religion) are qualified by the need for the individual to respect the rights of other persons. te Therefore, most of the constitutional rights are to be exercised with “reasonable regard” to considerations such as public order, public safety, public health and public rights. morality. Reference to “public morality” should alert us to the fact that there will be a subjective assessment inherent in whether or not certain rights are to be recognized in practice. 27  The Some constitutions (e.g. Jamaica, Barbados, Trinidad and Tobago) contain a savings clause to the Saving effect that colonial laws are to be preserved unless and until they are amended by legislation. Thus, if a law existed prior to the date of s independence, then that law remains valid even if it is in breach of constitutional safeguards. Clause This is exemplified by the case of flogging and whipping, forms of punishment that are evidently contrary to the injunction against Issue. inhuman or degrading punishment or treatment. 28  The To the extent that flogging and whipping was valid in the pre- independence period, they Saving remain valid as punishments in those countries that have the s savings clause in their constitutions. Even if social values change against flogging Clause and whipping, the judiciary cannot strike down this form of punishment as Issue unconstitutional in countries which have the savings clause. 29  The The United Nations Human Rights Committee has been critical of some Saving Commonwealth Caribbean States for retaining this form of punishment in their s law: see, e.g., Errol Pryce v. Jamaica (United Nations Human Rights Committee, Clause Eightieth Session, 15 March – 2 April 2004, Communication No. Issue 793/1998). 30  The All Commonwealth Caribbean countries retain the death penalty for some types of Death murder. In the case of Trinidad and Tobago, the death penalty is mandatory, Penalt so that where a person is convicted of murder, the judiciary has no option but to y impose the death sentence: Charles Matthew v. The State (2004) UKPC 33, Boyce and Joseph v. The Queen (2004) UKPC 32. 31  In the case of Jamaica, Belize, St. The Lucia, and St. Kitts-Nevis the mandatory death penalty has been struck down by the Judicial Committee of the Privy Council: see Death Lambert Watson (2005) 1 A.C. 472; Reyes v. The Queen (2002) UKPC 11; R v. Hughes (2002) UKPC 12; Fox v. The Queen (2002) UKPC 13. Penal In Commonwealth Caribbean countries that no longer have the mandatory sentence, capital ty punishment may be carried out only in the “worst of the worst” cases: Daniel Dick Trimmingham (2009) UKPC 25. 32  In addition to striking down the The mandatory death penalty where this possibility was available to the court, the Judicial Committee of the Privy Council has restricted the Death circumstances in which the death penalty may be carried out. Thus, in Pratt and Morgan v. The Attorney General of Jamaica Penal (1993) UKPC 1, the Privy Council held that where the time between the imposition of the death sentence and its execution ty exceeded five years, there was a presumption that execution would then be inhuman or degrading punishment or treatment. 33  In the context of the United Nations, The questions concerning the lawfulness of the death penalty continue to be controversial. In the debate, Commonwealth Caribbean countries Death have sought to defend their legislative provisions largely by reference to State sovereignty; these countries have also argued, with Penal others, that Article 6 of the ICCPR on the right to life does not prohibit the death penalty. This position has not convinced a significant number of ty abolitionist States and organizations. source https://legal.un.org/avl/pdf/ls/Vascianni e_outline.pdf 34