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News and Views by Dionne Jackson Miller

pointed commentary on current affairs in Jamaica and the Caribbean

Month

January 2014

Constit Law

Sincere apologies to anyone NOT in my constit tutorial, I promise this will never happen again!! Students please prepare as follows:

1. The concept of Parliamentary sovereignty has been overtaken in the case of the Commonwealth C’bean constitutions by the concept of constitutional supremacy.

Discuss with reference to Collymore and the cases on page 17 of the worksheet

2. See Questions for Tutorial Discussion on your worksheets – pages 36-37 – prepare questions,3 & 4

3. What are the main principles in Collymore and Symonette?

Human Rights Round-Up

Photo by Salvatore Vuono www.freedigitalphotos.net
Photo by Salvatore Vuono
http://www.freedigitalphotos.net

Here are a few of the human rights stories making news around the world that I find interesting.

1. Reparations could be a step closer for the indigenous Maya Achi community in Guatemala, three decades after hundreds were killed to clear the way for a dam to be built.

The Guardian reports that the Inter-American Development Bank (IDB) and the World Bank financed the construction of the dam and survivors have been calling for the institutions to pay reparations for years.

The fresh hope comes as US President Barack Obama prepares to sign a bill that will, among other things, instruct the World Bank and IDB to report on steps taken to implement the provisions of a 2010 reparations plan.

2. The UK government continues to declare that it will not obey a ruling from the European Court of Human Rights that a blanket ban on allowing prisoners to vote was a human rights breach. The stand-off has led to the Justice Secretary announcing plans to curtail the role of the ECtHR in English law, and ensure the supremacy of Britain’s highest domestic court, the Supreme Court.

3. A UK House of Lords enquiry has heard that the human rights of mental health patients are being breached, as some judges are refusing to hear testimony from such patients, the Independent reports.

4. In one of the latest salvos in the war over judicial appointments in the United States, President Obama is being accused, in a case now before the Supreme Court, of violating the constitution in making recess judicial appointments.

5. A man from a Pacific island failed in his bid to acquire refugee status in New Zealand as the world first climate change refugee. The decision was made last November, but I report it here because it is novel and interesting, and you may have missed it.

There is useful comment on the case here. 

2014 Could Be an Interesting Year for Constitutional Law

 

Photo by DJ Miller
Photo by DJ Miller

As Jamaicans continue to test the still new 2011 Charter of Rights and Fundamental Freedoms, we could see some intriguing cases before the Supreme Court this year, such as the issue of the undated Senate resignation letters, a challenge to the buggery law, and a test of the constitutional provision for the right to a healthy environment. Such cases are important in delineating the limits of a constitution and specifying the protection it offers. 

The Undated Senate Resignation Letters

Former Senator Arthur Williams has indicated that he intends to pursue his claim that Opposition Leader Andrew Holness’s use of undated resignation letters to force him and Christopher Tufton out of the Senate violated his constitutional rights. Williams says the letters were intended to be used only in the event of Opposition Senators wanting to break with the party on the Caribbean Court of Justice. If the case goes to conclusion, we could see the court pronouncing on something that lawyers have been arguing over for years – what power, if any, do political leaders have to remove senators who they themselves appointed?

Williams has said he is seeking the following:

“ A Declaration that an undated letter of resignation and a letter authorizing the Defendant to date and use the same which had been signed by the Claimant were used by the Defendant other than for the purpose for which they had been given and therefore were unlawfully used and accordingly are void and of no effect.

 A Declaration that based upon the Claimant’s stated position that he would not resign as   requested, he had effectively revoked the said letters.

 A Declaration that the very fact of requesting these undated letters of resignation from all persons to be appointed as Senators under nomination of the Leader of Opposition is contrary to Jamaica ’s Constitutional scheme.

 A Declaration that the undated letters of resignation are void as being inconsistent with the Constitution by seeking to give to the Defendant the right or power to effect the resignation of the Claimant at the Defendant’s volition.

 A Declaration that by using the undated letters of resignation for the reason that the Claimant did not support the Defendant in the election for leadership of the Jamaica Labour Party is inconsistent with the Constitution of the Jamaica Labour Party and the Constitution of Jamaica.

 A Declaration that the use of the undated letters of resignation on the basis that the Claimant did not support the Defendant in the election for leadership of the Jamaica Labour Party contravenes the Claimant’s constitutional rights to the freedoms of conscience, association and expression protected by section 13 (3), (b), (c ) and (e) of the Charter of Rights.”

Those section of the constitution provide for

(b) the right to freedom of thought, conscience, belief and observance of political doctrine;

(c ) the right to freedom of expression;

(e) the right to freedom of peaceful assembly and association.

 Challenge to Buggery Law

 Then there is the challenge to the buggery law brought by Javed Jaghai. Jaghai is seeking a declaration that;

“The right to privacy in the Charter of Rights and/or the right to equality excludes private sexual activity between consenting male adults from being criminalized under the Offences Against the Person Act (sections 76,77,79) or a declaration that private sexual activity between consenting male adults are excluded from those sections of the OAPA as a matter of statutory interpretation;

An order that sections 76 and 77 of the OAPA will continue to govern non-consensual anal intercourse and anal intercourse with minors.”

 The sections of the OAPA cited are:

76. Whosoever shall be convicted of the abominable crime of buggery, committed either with’ mankind or with any animal, shall be liable to be imprisoned & kept to hard labour for a term not exceeding ten years.

77. Whosoever shall attempt to commit the said abominable crime, or shall be guilty of any assault with intent to commit the same, or of any indecent assault upon any male person, shall be guilty of a misdemeanour, and being convicted thereof, shall be liable to be imprisoned for a term not exceeding seven years, with or without hard labour.

79. Any male person who, in pub!ic or private, commits, or is a party to the commission of, or procures or attempts to procure the commission by any male person of, any act of gross indecency with another male person, shall be guilty of a misdemeanour, and being convicted thereof shall be liable at the discretion of the court to be imprisoned for a term not exceeding two years, with or without hard labour.

 Right to Healthy Environment

There is also the possibility that within the context of the potential transhipment port development on the Goat Islands that environmental advocacy groups may seek to test the significance of Section 13 (3) (l) of the Charter which provides for:

“the right to enjoy a healthy and productive environment free from the threat of injury or damage from environmental abuse and degradation of the ecological heritage.”

This is an interesting provision in the Charter. Environmental rights are regarded as many scholars as so-called third-generation rights (civil and political rights being first-generation rights, social, economic and cultural rights as second-generation) and there is debate as to the extent of their justiciability. Parliament’s deliberate inclusion of this provision in the Charter is therefore interesting, and I will be eager to follow a court case testing this provision. 

So stay tuned, interesting days are ahead! 

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