human rights & law in jamaica

Human Rights and the Law in JamaicaThe Norman Manley Lecture, I?*** March 2010

Lord Anthony Gifford QC*

I am proud and honoured to have been invited to deliver the lecturewhich celebrates one of Jamaica's, and the world's, finest advocates.One of the joys of working in Jamaica over the last 20 years has beento learn from the best Jamaican advocates who are as eloquent as any Ihave known. Indeed banisters in Britain are more and more becominglegal specialists. The specialism of a true advocate is not this or thatbranch of the law but the art of persuasion. Norman Manley was by allaccounts the consummate advocate. Dudley Thompson is another; herepresented me once when I was ejected from the Bar of Grenada. IanRamsay was another; he was my mentor and co-counsel in many causes.Those whose human rights are violated in Jamaica need advocates; themore unpopular the case, the greater the need for advocacy, I hope thatsome of you will foüow in the footsteps of these great advocates. Thepractice of law is not just about serving the interests of business andthe state. We need more attorneys who are ready to be the advocates ofthe underdog.

The Fundamental Rights and Freedoms of the Jamaican people areset out in Chapter III of the Constitution. Unfortunately, any Jamaicancitizen who bought a copy of the Constitution and tried to grasp themeaning of Chapter III would soon give up in despair. It starts witha sentence containing 163 words and a number of clauses starting"whereas" and "subject to". It continues by setting out various rightsbut subjecting them to multiple exceptions, so that you end up needingto consult a lawyer to appreciate the extent of your rights. This is not

* Lord Anthony Gifford QC, Attomey-at-Law,

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healthy for a free society. A Charter of Rights needs to live in the minds ofthe people. Its core provisions should be grounded in the consciousnessof young people before they leave school. It should be written in clearand resonant language, not turgid legalese.

Reform of the Constitution has been tackled at a classically Jamaicanpace. The need for reform was recognised in 1992 when a ConstitutionalCommission was set up. It held public meetings and reported in 1994.Its report included a draft Bill of Rights. The draft Bill has been amendedby a Joint Select Committee and is now before the Jamaica Parliament.In reasonably clear language the Bill sets out nineteen rights whichneither Parliament or any organ of the State may abrogate or infringe. Therights 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 rightsof children to protection and to free primary education; the right to apassport; and the right to equitable and humane treatment from anypublic authority. Instead of a list of exceptions, the draft Bill simplyprovides that rights may only be limited by laws relating to periods ofpublic emergency or "as may be demonstrably justified in a free anddemocratic society". I ask, when is the Charter going to be passed?

The Bill would remove a serious flaw in the 1962 Constitution Section26(8) declares that nothing contained in any law in force before 1962can be held to be inconsistent with the provisions of Chapter III. Inother words the pre-1962 colonial laws were assumed to conform withthe rights contained in the Constitution, so that only laws passed after1962 could be challenged as unconstitutional. This provision freezesconstitutional rights in the mould which was shaped up to 1962. Itmakes no allowance for the possibility that Jamaican judges might findthat pre-independence laws were less than perfect in their protectionof human rights. Among the laws which cannot be challenged becauseof this provision are the Flogging Regulation Act which permits floggingas a punishment, and the sections of the Offences Against the PersonAct which criminalise homosexual acts. Unfortunately the Bill has anew saving clause which freezes anything done under any existing lawrelating to sexual offences, obscene publications, and offences regardingthe life of the unborn. Some special interest groups have been at work.It just shows that Constitutions, like any other laws, are the product ofcompromise.

With all its shortcomings. Chapter III of the Constitution doesguarantee most of the essential freedoms which underpin a democratic

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Human Rights and the Law in Jamaica

society. It protects the right to life, liberty and the security of theperson; the right not to be subjected to torture or inhuman or degradingpunishment or treatment; the right not to have property seized orpremises entered; the right to a fair trial; and the rights of freedom ofreligion, expression and association. But does the reality conform to thepromise of the law?

Taking stock of the state of human rights in Jamaica today, lookingat how far Jamaicans actually enjoy their fundamental rights andfreedoms, the picture is uneven, sometimes positive and sometimesappalling.

On the positive side, freedom of speech in Jamaica is alive andwell People in high places are criticised and often vilified on a dailybasis on talk shows and news programmes. There are some aspects ofthe libel laws which need reform, but in general, having representedboth claimants and media houses, I believe that the law strikes a goodbalance between the right of free expression and the need to protect theindividual from character assassination.

Freedom of association is well developed, so that trade unions, humanrights groups and numerous professional and social organisations arepart of the life blood of Jamaican society. In an era when workers' rightsare under constant threat, our laws relating to labour relations andindustrial disputes have prevented major strikes and have effectivelybalanced the rights of the employer and the dignity of the worker.

Freedom of religion is enjoyed by the adherents of thousands ofchurches and other places of worship. I was able to uphold the freedomof religion of a prison inmate in the case of Kevin Hall, who wanted tojoin the Church of Haile Selassie I, a Rastafarian church. The ministersof the Church were only able to see him as ordinary visitors, whichmeant a few minutes shouting through a grille in conditions of minimalprivacy. The ministers of all the Christian churches had the facility ofusing the prison chapel to conduct services, but this was denied tothe Rastafarians. I brought a constitutional motion complaining thatMr. Hall's right to freedom of religion had been violated. Shortly beforethe case was due to be heard the government's attorneys suggesteda settlement. A solemn agreement was reached which recognised theChurch's right to hold services in the prison on the same terms as otherchurches. Assurances were given that ganja would not be used in theservices. As a result, there is now a service taking place every month inthe St. Catherine Adult Correctional Centre, attended by several dozen

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inmates, complete with chalices and incense-burning and the colourfulrituals of Rastafari.

The right to property is generally respected. The State has to proceedwith strict legality when it enters private property. In 2003 my lawpartner Hugh Thompson was able to uphold his rights, and those ofhis client, after a posse of armed police raided our offices and seizedhis client's files, because they claimed that the client was launderingmoney. The Bar Association staged a demonstration outside Parliamentand launched a constitutional motion, which failed in the SupremeCourt but succeeded in the Court of Appeal. These were magnificentacts of solidarity based on the principle that the State must not abusethe Constitution.

But there are other rights which are violated on a daily basis. Theright to life rings hollow in a country which has the highest murder ratein the world. Innocent lives are taken not just by criminals, but by thepolice, who are responsible for 241 deaths last year. Some no doubtwere shot in lawful self-defence, but many were shot in cold blood orthrough gross misuse of firearms by officers who tend to shoot first andthink of the explanation later.

The right to liberty is constantly denied to poor suspects who arelocked up for weeks and not brought to court "without delay" as theConstitution requires. Those who can afford an attorney can makea habeas corpus application which will normally bring their illegaldetention to an end. Those without an attorney languish in police lock-ups until the police determine whether to charge them or release them.

The right not to be subjected to inhuman or degrading punishment ortreatment means little to Jamaica's prisoners who are held in overcrowdedand often hellish conditions. The prisons where convicted prisoners arekept are bad enough, with inmates crammed into insanitary cells wheremany have no room to lie down; but at least there are long periods ofassociation in the open air, where various kinds of work and creativityand recreation take place. The remand centres and police station lock-ups, where prisoners awaiting trial or extradition are kept, are the worst.There is no place for exercise or fresh air, and prisoners sit in their cellsfor the greater part of the day and night.

As for the right to a fair trial, we have to examine each aspect of thisright. The Constitution provides for a person charged with a criminaloffence to be afforded a fair hearing... by an independent and impartial

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court established by law. I want to say clearly, that the Jamaican judgesare definitely independent, they are generadly impartial, and they tryto be fair. When they fail there is a good prospect of getting justiceon appeal. But there is a dreadful problem with the four words I leftout, "within a reasonable time". The system has become clogged withoverload and weighed down by inefficiency. Three years is not unusualfor an accused person to be in custody awaiting trial. It can and mustbe improved. The civil justice system was recently reformed by theintroduction of mediation, where settlements can be reached at an earlystage, and by case management conferences where a judge overseesthe preparation for a trial. As a result the delays in getting a case heardhave reduced from three years to one year or less. Case managementin criminal cases is now being introduced, and we must all assist inworking the new system.

In the face of all the difficulties I constantly urge my colleagues inthe legal profession not to despair. The system may be slow but it hasnot broken down. The judges must be given credit for presiding overa court system which retains the essential hallmarks of justice. Thereare younger judges coming through the system who give me confidencein the future because of their independence of mind and their legalability. Chief Justices Wolfe and McCalla have shown commendable zealin getting the system to work efficiently, including getting the courts tostart on time. The judges of appeal have a gruelling workload, whichhas led to delays in the writing of judgments; but the quality of theirreasoning remains high, and several of their judgments in recent yearshave been praised by the Privy Council.

That is why I agree with those who have said that if there is an issueaffecting the constitutional rights of the citizen, whether it arises in caseof extradition or in any other case, it normally should be, and can safelybe, left to the courts of law to determine. The State has never been areliable or consistent interpreter of the rights of the individual.

But the judges can only uphold human rights in cases which arebrought before them. If those whose rights are abused cannot getrepresentation, then justice is an unattainable fantasy for them. Wemust look not only at the quality of justice, but at the extent of accessto justice.

I see hope in recent developments in Jamaica which have widened thepossibilities of justice. The introduction of the post of Public Defenderin 2000 was a brilliant brainchild of the Hon. Edward Seaga. The

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Public Defender has powers to investigate cases of injustice as a resultof administrative action, and cases of infringement of constitutionalrights. He or she must be a champion of those whose grievances wouldnot otherwise be redressed.

Non-governmental organisations have begun to play a remarkablerole in bringing injustices to light and holding the State to account. TheIndependent Jamaican Council for Human Rights (IJCHR) researchedthe plight of inmates in the prisons whose cases had been forgotten. Manyof them had been declared "unfit to plead" and remanded indefinitelyon minor charges. Some had been in prison without trial for decades.Several cases were taken to court. Inmates were freed and a systemagreed with the authorities for monitoring such cases. IJCHR has alsotaken up the cases of Haitian and Cuban refugees and filed claims forasylum where appropriate,

Jamaicans for Justice (JFJ) has been conspicuous in bringing abusesof power by the police and other authorities to light, and pursuingremedies for the victims. The organisation has worked effectively withpathologists from Britain, who have brought an independent element intothe investigation of police killings. It was tireless in the case of MichaelGayle, a young mentally ill man who was cycling along a Kingston streetin 1999 during a period of curfew, when police and soldiers stoppedhim, set upon him and beat him with gun butts, punches and kicks,so that he died two days later from peritonitis following traumaticrupture to the stomach. When no-one was prosecuted for his death,JFJ took the case to the Inter-American Commission on Human Rightsand secured a ruling that Jamaica was responsible for violations of fivearticles of the American Convention on Human Rights: the right to life,to humane treatment, to liberty and security, and to an effective hearingand remedy. Many other well-known cases of police shooting would havereceived little attention if JFJ had not existed.

The organisations reflect and articulate a widespread conscience inthe Jamaican people. One also hears it from journalists, church leaders,academics and others who speak day after day in the media, wringingtheir hands at the injustices of the system and offering their advice asto what we can do to rescue our sinking society. If words alone couldchange a country, Jamaica would be a paradise. When a major humanrights scandal occurs, the outcry can move the authorities into action.

So when I am asked about the state of human rights in Jamaica, Isay that it is a work in progress, repeatedly set back by gross abuses,

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but fostered by the efforts of good people in strong organisations. Myexperience in Jamaica even more than in Britain is that everyone canmake a difference. Human rights are upheld by the judges, but oftenafter inordinate delays and only in cases which attorneys are willing tobring to court. Speaking directly to Jamaican lawyers and law students,I say that every lawyer can make a difference to the advancement ofhuman rights in Jamaica. However, much people lobby and campaignand expose injustices, it is the law which provides the concrete remedieswhich the victims of injustice need. Many of the lawyers who take caseswith the support of the human rights organisations are veterans whoserecord goes back through the decades. I would like to see more youngattorneys fired with the zeal to take up human rights cases. If you arenot sure about how to fight a case, ask for guidance from one of theveterans. Do the research and ask a senior to be your leader when thecase comes before the court. Take some cases for no fee, or for a reducedfee, or on a contingency fee. Whether or not you are properly paid, makesure that those whose rights are abused can get access to justice.

Human rights violations do not, of course, come only at the handsof the agents of the state. If one were to do a survey among Jamaicancitizens as to the ways in which their rights have been violated, I wouldbet that spousal abuse would head the list. The love of justice whichmost Jamaicans profess has to be contrasted with the brutal injusticesperpetrated by so many Jamaican men upon their partners in theprivacy of the home. The reality of thousands of Jamaican women is thedomestic hell of living with men whose idea of a personal relationship isthat they should be in absolute control; they can lust after other womenwhile their women must stay at home; they should be obeyed at alltimes; and they can enforce their dictates by violence if their desires areflouted. The concept of equal rights and justice does not enter the headsof these would-be all-powerful males.

As with every example of historical injustice, the victims in the endrefuse to bow down. Jamaican women are fighting back. Their liberationstruggle may not be organised under any banner, but women todayare making better use of education and employment than ever before,and better than the men. This development is treated by some men aspresenting a crisis for the Jamaican male. In a way this is right, fordemands for freedom always cause a crisis for the oppressors. But thecrisis is simple to resolve. Once men are able to accept the conceptof equality and justice in their personal lives - equal respect for each

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others' views, equal rights to a career, equal responsibilities towardschildren, an equal say in sexual activity or non-activity, and a totalend to violence - they will find that a new and joyous world will open tothem.

Children too have rights. It pains me when I hear, as I do too oftenin Jamaica, of children being sexually abused, children roaming thestreets, children being sacrificed in parental wars. Cases involvingspouses and children are more demanding than almost any others. Theemotions of your client are intense, and the whole future of the childrenmay depend on the decision of the judge. I greatly admire Jamaicanattorneys who fight for the rights of women and children on a dailybasis, as well as the women's organisations which provide refuge andsupport to women in crisis. The tragedy of Armadale has also brought tothe fore the appalling maltreatment of children in state care. There hasat least been a strong reaction: a prompt inquiry, a report which mustbe acted on, so that the families of the Armadale children secure somejustice out of this dreadful event.

So far we have spoken of areas in which human rights are protectedby the law in theory, but violated in practice. I have to end by touchingon two areas in which the law itself, in my view, infringes human rights.Homosexual acts between men, however private, however consensual,are criminal offences in Jamaica. At a time when civil partnershipsbetween gay couples are becoming recognised around the world asbeing legal relationships having the same status as marriage, Jamaicaremains bound by the laws of the Old Testament. While there are fewprosecutions for homosexual acts between consenting adults, theprejudice in the society is widespread.

I implore Jamaicans to look at the situation of gay men in the contextof human rights and justice. The Constitution of Jamaica proclaimsthat every person in Jamaica has the right to 'respect for his privateand family life'. Each of us would demand as much for our own privaterelationships. The law should intervene only when the right to privatelife is abused, for instance by spousal violence or child molestation.Subject to that, what adult people do in their private consentingrelationships is up to them, and the Constitution should protect them.Indeed, fundamental rights need the most vigilant protection when theyare claimed by vulnerable and unpopular sections of society.

I took up a case many years ago for a gay man in Northern Ireland, ata time when the laws of Northern Ireland criminalised homosexual acts

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between men. Protestants and Catholics were at war at the time, butthey agreed about gays. I took the case to the European Court of HumanRights under Article 8 of the European Convention which guaranteedthe right to respect for one's private and family life. The Court ruled byfifteen votes to four that my client Tiad suffered and continues to sufferan unjustified interference with his right to respect for his private life'.Shortly afterwards the British Government changed the law in NorthernIreland. It was a classic case of the human rights of the individual beingupheld by the judiciary in a hostile and prejudiced political environment.Remember always that human rights are needed most by those who arethe most unpopular.

Secondly, we still have the death penalty, even though it is nowrarely imposed by the courts and has not been executed since 1988. Ibelieve it to be a violation of the right to life for the state to kill a personwith deliberate intent. I rejoice that there have been so many limitationson the carrying out of the death penalty, and that I have not had tosuffer the pain of seeing a client executed. I did have a client who had awarrant 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 smallcompound as the gallows. He had the appearance of a man who wasalready half dead. The colour and lifeblood appeared to have drainedfrom his face as he sat alone in the tiny cell. Fortunately, the warrantwas stayed pending a further appeal.

The world is moving away from the death penalty as being eitheruseful or moral as a sentence for crime. The only countries in theAmerican 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 whichthe forebears of most Jamaicans came. Half of them have abolished thedeath penalty. In the case of Mankwanyane in which the South AfricanConstitutional 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 foundthat the death penalty was hardly ever imposed. Their reasoning was,why sacrifice a second life for one already lost? It was the Dutch andthe British who imported cruel forms of execution into Africa. Death byhanging was the fate of three of Jamaica's national heroes: Sam Sharpe,

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Paul Bogle and George William Gordon. Must Jamaica continue to copythe colonial barbarians?

The judicial system is not infallible and mistakes can be made. Irepresented some of the Irish defendants known as the BirminghamSix and the Guildford Four, who would undoubtedly have been hangedif the death penalty had been available when they were convicted. Thewhole of Britain was revolted by the crimes which they were found guiltyof committing. Public clamour would have demanded their death. Butyears later they were all found to have been innocent. The Jamaicansystem, starved of resources as it is, is still more fallible. Witnesses canlie, and confessions can be fabricated, and identification evidence canbe mistaken. If the death penalty is carried out, a miscarriage of justicecan never be rectified.

I have also learned in Jamaica that the capacity of the individualfor redemption and rehabilitation is extraordinary. I have had clientswho have spent years on Death Row, who would have been hanged ifthe law had not been changed. Many are now on parole and have notre-offended. Some who are still in prison have been given weekend leaveor have been employed outside the prison. I have met artists, musiciansand counsellors. In their character they are not the same people whocommitted crimes of violence ten or twenty years ago. Their lives, whichthe court had ordered to be ended by the noose, have turned out to havereal value.

I believe that the death penalty feeds that desire for retribution whichhas warped Jamaican society. Hanging legitimises the idea that it isall right to take life by way of revenge - which is precisely the mindsetwhich we condemn when it leads to gang murders in the inner city ormob killings in the country villages. It is not a deterrent to murder, sincesome of the countries with the highest crime rates are also countrieswhich retain the death penalty. Rather when the state kills, it teachespeople that violence is the way to deal with injustice. It is the ultimateform of oppression, to eliminate those who are perceived as the enemiesof society. Jamaicans with their history of oppression should knowbetter than to support this barbarity. I look forward to the day whenJamaicans and other Caribbean peoples will renounce the death penaltyentirely, recognising that there are other forms of punishment for crimewhich benefit society through the rehabilitation of the individual soul.

But I will not end on a grim note. On this issue, as on other issuesconcerning human rights, there have been reforms in the law, and there

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has always been a passionate debate. That is why I retain the belief thatthe 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 Stateto dispense justice, and are angry when it does not. They expect theattomeys-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 thesolution to Jamaica's human rights problems. We need the patience touncover the facts, the creative intelligence to shape the law. That is theexcitement of the practice of law, to use intellectual rigour to resolvea human tragedy, I ask you to match your brains and your humanityto secure the real enforcement of human rights in this troubled butbeautiful land.

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The 2010 Norman Manley Lecture was delivered byLord Anthony Gifford on 'Human Rights and the Law in Jamaica'.

Reflections on the life of Norman Manley was presented byMrs. Beverly Anderson-Manley

The event was held at the Norman Manley Law School, 17 March 2010.

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