Wednesday, April 27, 2011

JuridicsJamaica: Constitution: Charter of Fundamental Rights and Freedoms (Apr27,2k11)

Posted: 24 Apr 2011 01:38 PM PDT
After 17 years of debate and discussion, the Jamaican parliament adopted a Charter of Fundamental Rights and Freedoms earlier this month. It will enter into force once signed by the Governor General. The adoption brings the Jamaican Constitution in line with the trend in commonwealth countries, represented by the UK Human Rights Act 1998 and the Canadian Charter of Rights and Freedoms. Although Chapter III of the 1962 Constitution did have provisions on rights, the new Charter expands the list and adds significant detail. It clearly identifies a state duty to uphold the rights, and to some extent modernizes the previous set of rights by adding a right to a clean environment and specifically enumerating the rights of children. (There are no provisions on the disabled, however.)

The Charter confirms that the death penalty can be utilized, explicitly overruling in Section 13(8) the decision of the Judicial Committee of the Privy Council in Pratt and Morgan vs Attorney General of Jamaica. That case had held that holding a person on death row for more than five years was cruel and inhumane treatment; backlash against the case had led Jamaica to withdraw from the jurisdiction of the Privy Council. (An attempt by Jamaica to replace the Privy Council jurisdiction with that of the Caribbean Court of Justice was later declared unconstitutional by the Privy Council in Independent Jamaica Council for Human Rights Limited and Others [2005]).

Jamaica marks yet another step in the global spread of rights, and the decline of absolute notions of parliamentary sovereignty.

--Tony Ginsburg

--  This material posted here by Lawt

refWrite edtorial comment: I have the same problem with the title of this constitution as I do with that of Canada on which said title is modelled.  In this, I follow what reformational social leader Gerald Vandezande, recipient-member of the Order of Canada, maintained some time ago -- namely, that it shoud be / shoud have been designated a charter of rights and responsiblities.  On the other hand, the Canadian charter does not spell out any responsiblities, not with any explicitness, only implied at best.  Likewise, Jamaica's new Charter.  The charters are both good, despite their differences, and the Jamaican developments are here greeted with applause.  One coud say the charters in both cases are modelled on the idea of a Bill of Rights as instituted in the First 10 Amendments to the USA Constitution. The Canadian Constitution's Charter of Rights was created whole-cloth by politicians at record speed as part of the repatriation of the Constitution from the United Kingdom and never resolved certain structural problems (for example, the status of Quebec), while the Jamaican bill of rights has now been adopted after 17 years, as Tony Ginsburg points out.

-- Lawt 

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