CIVIL SOCIETY AND HUMAN RIGHTS

 

 

“A study of the inter-relations between societal groups in Jamaica within a Human Rights framework”.

 

A. THE HISTORICAL BACKGROUND

 

1.  The Struggle for Freedom

 

1.                  The characteristics of the institutions of State and civil society in contemporary Jamaica

have their genesis in the country’s social, constitutional and political history.  Existing legal institutions and social groupings have been shaped in an historical vortex of the struggle against slavery, resistance to racism, societal tensions, cultural conflict and the interplay of English norms and African traditions.

2.                  European exploration and colonisation had already dominated the world for over 150

years when the English acquired Jamaica.  By then the indigenous people had been largely decimated and the population consisted of white property owners and black slaves.  The needs of the sugar plantations for durable labour fueled the slave trade.  At the beginning of the 18^th century the Jamaican population consisted of 8,000 whites and 10,000 blacks.  By 1773 there were 200,000 blacks to 10,000 whites.  The demographic predominance of blacks would eventually prove to be a decisive factor in the legal and social structures of the Jamaican society.  By the end of the eighteenth century a pattern of large estates owned by a small number of absentee white owners and supervised by a small number of overseers of questionable quality but manned by a large body of slaves had been well established.

3.                  Increasing numbers of Africans were being brought into a society of low moral standards,

little sense of loyalty and economic inefficiency.  The legal and constitutional systems were inadequate for coping with this situation.  The African whose indigenous religions and social

 

 

 

norms emphasized brotherhood and family responsibility was torn from his family, detached from his cultural roots and placed in a system which sought to flog him into subjection.

4.                  The constitutional system entrenched the inequities of the society.  Legislative power was

vested in the colonial Governor and an House of Assembly, the membership of which was confined to the landowners.  Local government was controlled by the same propertied class, a Custos and justices of the peace, the Rector of the Parish Church and his vestrymen, all white.  The same group controlled the local, inferior courts.¹  The only recognised civil society was therefore part and parcel of the establishment.  In this period, as Sherlock and Bennett point out, profits took precedence over human rights.²

5.                  The African slaves were classified in law as chattels, things, and had no civil rights.  To

The established Church he was not a child of God.  In constitutional law he was not a subject but an object.  Repressive and cruel laws were enacted to curb and discipline the slaves and the white majority had the power of life and death over them.

6.                  Against these formidable obstacles the black majority constantly struggled.  This history

constitutes one of the most enduring and sustained struggles in human history for human liberation and justice.  It is in this struggle that indigenous civil organisation had its birth.  Rebellious and escaping slaves fled to the mountains and established Maroon communities, eventually forcing the Imperial Power to sue for peace.  The articles of agreement made in the form of a treaty in 1738-39 and ratified by statute was concluded by representatives of the

 

 

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¹              Barnett, Constitutional Law of Jamaica (1977, OUP), pp. 1-5.

²              Sherlock and Bennett, The Story of the Jamaican People (IRP), Chap. 9.

 

 

 

Government and the leaders of the Maroons granted the rebels freedom and liberty from slavery, the enjoyment by themselves and posterity of certain areas of land, and liberty to plant those areas with specified crops, and the right to live together in reserves.  Most significantly a limited jurisdiction was granted to the leaders to try and impose punishment (other than capital punishment) on the members of the community.³  Those who remained on the plantations developed novel ways of communicating and of conducting the ongoing struggle.  By the beating of drums, the forms of dance, the telling of stories, traditional culture communicated messages of defiance and determination.

7.         The vast increases in the black slave population motivated the slave owners to allot plots of land to the slaves for food cultivation so as to supplement their diet.  An incipient class of small farmers developed and with it a local trade in ground provisions and other produce.  The local market-place provided not only a centre of economic activity but an opportunity for social intercourse.

8.         Into a climate of weakening sugar plantation economy and the social instability caused by

slaves struggling for freedom there entered a wind of change in the enlightened morality of the Evangelical Movement and a new religious liberalism.  Its developing hurricane force swept away the slave trade in 1807⁴ and eventually slavery was abolished in 1833⁵.  The work of non-conformist missionaries not only brought new impetus to the struggle against slavery but

 

 

 

 

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³              12 Geo. 111. Cap. 4; R. v. Man O. Rowe (1956) 7 J.L.R. 45.

⁴              Imperial Act, 47 Geo. 111, c. 36.

⁵              The Abolition of Slavery Act, 3 & 4. Will. IV, c. 7.

 

provided an opportunity for civic organisations to be created on the basis of Christian principles, which not only militated against notions of white supremacy and the policies of human exploitation but strengthened concepts of brotherhood and communal cooperation in the enslaved society.

2.  The Quest for Democracy

9.         In the meanwhile the white dominated administration became increasingly insensitive to

these developments and after slavery was abolished and the interim apprenticeship system came to an end they sought to perpetuate its oppressive incidentals.  Between 1838 and 1865 the white rulers came into irreconcilable conflict with the British administration.  The ex-slaves now freed of physical bondage and enjoying the opportunities for freedom of movement, association and expression organised civil groups to protest the appalling economic conditions, the lack of social services for the poor and the injustices of the legal system.  National Heroes, Gordon and Bogle, were particularly vocal in these protests.  Gordon recognised that political power was the lever by which socio-economic conditions of the poor could be raised.  Bogle resorted to a more militant type of organisation.  Civil society became active in demonstrations and protests.  Petitions were circulated for signature and transmission to the imperial power.  The white administrators remained inflexible until eventually in 1865 the Morant Bay Rebellion overtook them and their shortcomings were fully exposed.  In abject surrender they abolished the House of Assembly⁶ and the Imperial Government imposed full Crown Colony government.⁷

 

 

 

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⁶              The Jamaica Act, 1866, 29 Vict. c. 12.

⁷              The Jamaica Order in Council, June 11, 1866.

 

 

10.       Under Crown Colony government substantial reforms were introduced.  The educational

system was re-organised and land settlements promoted.  The Church also contributed greatly to educational development.⁸  The foundations for a stable and independent and literate peasantry were established.  There was however no paralled rate of progress in constitutional terms.  The franchise was severely limited when representative government was re-introduced.  At the end of the 19^th century when the population was approaching three-quarters of a million the registered voters only numbered 16,256.⁹

11.       This period saw the creation of two civic organisations of a historic significance which

goes beyond their membership: the Jamaica Union of Teachers in 1894 and the Jamaica

Agricultural Society in 1895.  These organisations not only mobilized the views of important

sectors of the society with respect to the financial and professional interests of their members but

sensitized them on a whole range of public matters.   Teachers and small farmers became

prominent in the campaign for the extension of the franchise and to secure the maximum

registration of qualified electors.  

12.       The advent of Marcus Garvey energised the growth of national consciousness through his

ability to engender feelings of racial pride and self-esteem.¹⁰  Such civic organisations as the Nationalist Club devoted to anti-colonial programmes and the East Queen Street Literacy and Debating Society provided a platform for Garvey’s preaching.  By letters to the newspapers and

 

 

 

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⁸              See W. Arthur Lewis, Evolution of the Peasantry in the British West Indies, Pamphlet no. 656, January 30, 1936 (Colonial Office Library).

 

⁹           The Blue Book of Jamaica, (1900-1) s. L.

 

¹⁰             See A. J. Garvey, Garvey and Garveyism (1963), p. 194.

 

 

public meetings his powerful message reverberated through the Jamaican society.  Garvey eventually expanded his call for national consciousness and communal organisation into the concept of a universal pan-African movement but his impact on the development of a Jamaican feeling of self-respect and racial equality was profound and enduring.

13.       The 1920's and 1930's also witnessed a drift of rural labour to the urban centres.  High

unemployment, low wages and poor social services contributed to widespread discontent.  Arising out of discussions between Norman Manley and the United Fruit Company, the Jamaica Welfare Ltd. was founded with funds provided by the company to be used for the welfare of the Jamaican poor.  This organisation became the first private welfare organisation with a community based social development programme.  Cooperative societies were also formed in the communities to promote the development of economic collaboration and coordinate business enterprise in local groups.  The appalling socio-economic situation gave birth to the labour movement.  At first civil society responded with small, industrial type unions but increasingly it was being recognised that there were basic island-wide problems that had to be tackled as a whole.  Bustamante in the tradition of Garvey employed letters to the press and public meetings to express the people’s demand for social change. 

14.       Under Bustamante trade unionism became a national movement and the strikes of the 1930's became general strikes.  The labour disturbances which became widespread in the Caribbean in this period led to the appointment of a Royal Commission under the chairmanship of Lord Moyne.  In tandem with the agitation for better terms and conditions of employment were the campaigns for constitutional reform and for self-government.  The local movement for constitutional reform was aided by the New York based Jamaica Progressive League and the London based Fabian Colonial Bureau. It was eventually acknowledged by the British Government that effective measures for social improvement could not be achieved without constitutional reform.  The Royal Commission which had been sent out to investigate the causes of the labour disturbances recommended that the franchise should be expanded so as to make the legislature more representative of all important interests and sectors in the society.¹¹  The prospect of a more representative government and the campaign for self-government demanded formal political organisation.  Accordingly, the P.N.P. was founded in 1938 and eventually with the approaching demands of electoral politics a rival party, the J.L.P., was also established in 1943.

15.              The social ferment of this period and the political agitation were  accompanied by an

upsurge of artistic and sporting energy.  Groups of writers and artists, painters and sculptors began to give expression to the sentiments of racial pride and nationalistic aspirations.  The Drumblair home of Norman and Edna Manley became a centre of political discourse and artistic exposition.  In competitive sports of athletics and cricket, clubs and associations were active and ordinary Jamaicans emerged as champions on the international stage.

16.              The industrial and political agitation did not dull the sensitivity of civic society to the

social and economic needs of the underprivileged.  In the 1920's charitable Christians founded local Y.M.C.A. and Y.W.C.A. organisations to provide programme and facilities for the development and training of young men and women.  The Jamaica Women’s League was found in 1936 to offer humanitarian assistance for women and to provide them with education, training and counselling so as to foster community development.  Boy’s Town was established in

 

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¹¹             Report of the Royal Commission, Cmd. 6607 (1945), pp.. 57-8.

 

1940 in a depressed area of the City to provide training for boys, mentally, physically and spiritually, so as to enable those who are now “prisoners of the past to become, not parasites of the present, but architects of the future”.   The Trade Unions also agitated for reform of industrial law.  A Minimum Wage Act (1938) was enacted to provide for the fixing of minimum wages for workers in different trades.  The Women (Employment) Act (1942) was passed to prohibit the employment of women in night work excepting in defined occupations and circumstances.  A Factories Act (1943) was passed to provide for the protection of factory workers against unsafe working conditions.

3.   The Road to Independence

17.              The resulting new Constitution of 1944¹² was accompanied by universal adult suffrage.¹³

It featured the introduction of a Executive Council which included popularly elected members with the responsibility for the formulation of policy and a parliamentary system which included a popularly elected House.  Thereafter constitutional change was marked by the principle of gradualism.  The political system settled down into a bi-partisan pattern.  The leading parties either formed the government or were standing in wait to form the government.  They thus became associated with the establishment and less and less rooted in community organisation.

18.              The constitutional development was motivated by the belief that it was essential to

transfer executive power into the hands of the people’s representatives in the confident expectation that that power would be used to advance their welfare and protect them against

 

 

 

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¹²          The Jamaica (Constitution) Order in Council, 1944, no. 1215.

¹³             The Representation of the People Law, no. 44 of 1944.

 

 

injustice.  Great trust was placed in the political leaders by their supporters.  Apart from the privileged minority who feared the transition of power little thought was given to the development of mechanisms to provide checks and balances on governmental power in the conduct of government.

19.              Indeed, the political leaders in the formation of the Independence Constitution assumed

that constitutional change would proceed along the usual lines and had almost finalised the present Constitution when civil society, particularly activists from the University of the West Indies, young professionals and representatives of capitalists interests who were specifically concerned about the preservation of property rights demanded the incorporation of protective provisions for the fundamental rights and freedoms of the people.  More than one-third of the letters to the press and of the representations to the Parliamentary Constitution - making Committee advocated the inclusion of an entrenched Bill of Rights in the Constitution.  Eventually after persistent representation and its exclusion from the first three official drafts, a Chapter on Fundamental Rights and Freedoms was incorporated.

B.  THE POST-INDEPENDENCE AND CONTEMPORARY PERIOD

4.  Meeting the New Challenges

20.        The spirit of the African traditions of communal corporation and individual enterprise,

although greatly undermined by slavery and the colonial system, manifest itself in the Maroon settlements, the local markets, the free village communities, and the new social and professional organisations.  These early developments in civic organisation formed a firm foundation for vibrant political and social organisations and an alert civil society. 

21.       It was not long before the euphoria of Independence and the hopes and aspirations of

ordinary citizens for prosperity and social stability turned to disappointment and disillusionment.  The political parties became essentially machinery for conducting election campaigns and vehicles for obtaining preference in the distribution of contracts, jobs and other scarce benefits by the Administration.  The elected Parliamentarians did not distinguish themselves by taking up the complaints of citizens or by using their position and powers to safeguard the rights and freedoms of individuals.  Government’s finances and programmes became increasingly incapable of dealing with the problems of crime and security of the citizens, unemployment and illiteracy, of homelessness and poverty and of high costs and inefficient social services.

22.         To meet the crying needs of the people, several civic organisations covering varied fields were formed.  Examples are the St. Andrew Settlement (1968), the Human Development & Social Justice Commission (1975), The Jamaica Association for Children with Learning Disabilities (1976), Projects for the People (1979), National Council on Drug Abuse (1983), Jamaica Foundation for Children (1986), The Jamaica Conservation and Development Trust (1987) and the Jamaica Coalition for the Rights of the Child (1989).¹⁴  The previously established civic organisations began to play an increasingly significant role in public affairs.  To a large extent these civic organisations performed their functions without express reference to either constitutional or conventional human rights provisions.  Significantly, the trade unions provided the initial exception to the absence of focus on human rights provisions in that they frequently advocated workers’ rights on the basis of standards established by I.L.O. Conventions and Recommendations.  This was facilitated by the impartial nature of the national representation

in the International Labour Organisation.  The delegates to the I.LO. Conferences comprised representatives of Government, the workers and the employers.

23.          Despite the lack of express reference to the constitutional and conventional human rights provisions it is reasonable to presume that with the increasing internationalisation of human rights, civic society had imbibed the spirit of liberty, equality and fraternity. 

Imperceptibly at least the principles of the Universal Declaration of Human Rights had gained acceptance.  The Fundamental Rights and Freedoms expressed in Jamaica’s constitutional Bill of Rights had been patterned on the European Convention of Human Rights, which itself grew out

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¹⁴             Other such civic organisations are referred to later in this paper.

 

 

of the Universal Declaration.  The ideals and programmes of civic organisations therefore reflected the principles of the Universal Declaration that:

“recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world” and

“All human beings are born free and equal in dignity and rights.  They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood”.

24.       Immediately after attaining Independence in 1962 Jamaica joined the United Nations

Organisation and has since then played an active role in U.N. affairs. In 1966 Jamaica signed the Convention on the Elimination of all forms of Racial Discrimination (CERD), the International Covenant on Economic, Social and Cultural Rights (CESCR) and the International Covenant on Civil and Political Rights (CCPR), together with the first Optional Protocol (OPI) to the latter Covenant.  However the instrument of ratification and accession to these Conventions did not take place until 1971.  In 1980 Jamaica signed the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and ratified it in 1984.  In 1991 the Convention on the Rights of the Child (CRC), having been signed in 1970 was ratified by Jamaica.  Jamaica is also a member of the Organisation of American States and has ratified the American Convention on Human Rights but has not submitted to the jurisdiction of the Inter-American Court for Human Rights.  Accordingly, Jamaica in the last thirty years has become part of a fairly comprehensive international human rights regime.

25.       An examination of the scope, ideals, programmes and objectives of the many civic

organisations operating in contemporary Jamaica reveals that they have operated within the framework of the Universal Declaration of Human Rights, and the many international Conventions and standards established in the field of human rights.

26.       Nevertheless, in the wider society the real scope and significance of international human

rights principles are not well appreciated.  Furthermore, the extent to which the effective realization of human rights both in the civil and the socio-economic fields have been frustrated by failure to adhere to international norms is given only minimal attention.  It is therefore recommended that children should be taught the history of Jamaica in its human rights context and it should be part of the mission of non-governmental organisations to sensitize the public to these universal principles and relate their own activities and goals to international human rights norms.

5.  The Right to Life and Security of the Person

27.       The third Article of the Universal Declaration of Human Rights states that “Everyone has the right to life, liberty and security of person”.  This right has been seriously eroded in contemporary Jamaica.  In the 1960s a new and dangerous development manifested itself.  Political campaigns came to be characterised by gun violence.  By the 1980s gunmen had become clearly aligned with the political parties.  The housing schemes established by successive governments and populated almost exclusively by their supporters had become political enclares from which violent attacks were launched at their opponents and the term “garrison constituency” became a part of the Jamaican political dictionary.  As a result in many inner city communities civil society had to endure long periods of intimidation and exclusion from areas of virtual “no man’s land”.¹⁵

28.       The high incidence of murders, violent crimes¹⁶, fatal accidents and police killings in the views of many has reached alarming proportions.¹⁷  It is certainly at highly undesirable levels.  The perception of insecurity and the fear of danger have become an important factor in the social

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¹⁵             These sad developments are dramatised in the publications, Born Fi Dead (1995) by Laurie Gunst and The True History of Paradise (1999) by Margaret Cezair-Thompson.

 

¹⁶             See Statistical table on the incidence of crime 1970-2000, Appendix I.

¹⁷             See Statistical table on police killed and fatal shootings by police, Appendix II.

 

psychology of the Nation.  The demands for quicker solutions and the constant perils to which the security forces are exposed have led to a resort to short-term measures often to the detriment of the rights of law-abiding citizens without any enduring results.  It is in this area that the average Jamaican considers that his human rights  are in the greatest danger and it is the area in which the state agencies and the citizens come into most frequent contact.

29.       In the period beginning from the 1970's fissionary tensions developed in the society.  The

more privileged has often demanded strong action, meaning that the security forces should be

free to take such steps as they consider expedient or effective without regard to the citizens’ human rights.  Illegal seizures and  searches, questionable killings of suspects, the widespread detention of young men without any charge or evidence to support a charge have become standard or frequently used devices.¹⁸ 

30.       It is in this situation that the Jamaica Council for Human Rights was established on the

twentieth anniversary of the Universal Declaration of Human Rights in 1968.  The Council came into immediate conflict with the Administration of the Jamaica Labour Party because of its consistent advocacy of the rights of suspects and condemnation of police brutality.  The Council made representations to the Police High Command and to the political directorate, issued public statements condemning police excesses and provided legal aid to persons whose human rights were violated.  The initial reaction of the authorities to the Council was hostile.  As advocacy for human rights gained international respect and the United Nations Organisation emphasized the importance of the role of non-governmental organisations, official resentment mollified and occasionally the Council was invited to participate in public or official initiatives dealing with crime control and human rights issues.  In the 1990s the poorer and less privileged communities which suffer from the indiscriminate use of official forces have frequently reacted with demonstrations and protests against what they perceive to be police excesses or violations of

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¹⁸             A Statutory basis for these measures was provided by the Suppression of Crime (Special Provisions) Act, no. 3, 1974 and the Gun Court Act, no. 8, 1974.

their rights.  These civil protest groupings are largely spasmodic in creation and short-lived in duration.  But it is significant that the language of the protests is a demand for justice and respect for human rights.

31.       The perception that the security forces are unable to cope with the problems of crime has led to varied responses from civil society.  In some cases, vigilante-type groups of citizens have apprehended persons suspected of committing crimes in their communities and inflicted serious injuries on them or beaten them to death.  A more commendable reaction has been the formation of Neighbourhood Watch groups.  The Neighbourhood Watch programme was initiated in 1987.  It enables citizens to participate in cooperative communal crime prevention and victim support.  The local organisations are established by citizen with the assistance of the police.  The police provides a liaison officer from the police station serving the particular neighbourhood and local coordinators collect information on criminal activity from the citizens which they pass on to the police and provide a link between the Watch and the police.  Meetings are arranged by these civic organisations to discuss security in their neighbourhoods and plans for providing citizen alertness, swift communication and mutual assistance are derived.  Over 500 such Neighbourhood Watch organisations have been formed and in many communities they remain active.

32.       It has now come to be recognised and officially declared that civilian society cooperation and confidence are essential in combating crime and that crime suppression, investigation and prosecution must be conducted in a manner which recognises the human rights of citizens, victims and suspects.  It is necessary for the police to become community oriented and for communal strategies to be devised at the local level for integration in the national programme.

33.       The Jamaica Constabulary Force has made a conscious effort to reach out to the community in recent years.  Several police youth clubs have been set up in different parts of the Island to provide young persons with training and opportunities to be engaged in sports or other disciplined activities under the supervision of police officers.  The aim is to repair police and community relations, build cooperation and assist young persons to avoid criminal activities. 

34.       As a result of the Jamaica Council for Human Rights’ representations, a Police Public

Complaints Authority was established by statute in 1992¹⁹ to monitor and supervise the investigations of citizen’s complaints of police abuse.  The Council frequently submits or refers complaints by citizens to this Authority whenever they allege that their human rights have been infringed as a result of police abuse of power.  The Council is not however provided with any information on the investigations or follow-up action undertaken by the Authority.  So far this Authority has yet to win the public confidence in its effectiveness as a check on police abuse of citizens’ rights.

35.       An area of police conduct which constantly undermines all efforts to create police-public

cooperation and good relations is the widespread detention of persons without charge and the unjustifiable denial of bail.  Frequently large numbers of young men are picked up by the police and kept in detention while they are “processed”, that is finger-printed and interrogated.  These matters are frequently reported to the Human Rights Council and to members of the legal profession.  In many cases habeas corpus proceedings have had to be taken.  It is this  pernicious practice that led to the tragedy of the Constant Spring Lock up in which some 17 men were left in a small cell and three died from suffocation.  Human rights lawyers successfully brought legal actions against the government for this atrocity and civil society as a whole condemned the inhumanity of the police conduct.

36.       The Braeton incident is a very recent example of a strong reaction by civil society to police action.  The police report was that a police raiding party went to a house in Braeton, St. Catherine, to apprehend members of a criminal gang when they were shot at by the men and they

 

 

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¹⁹             Police Public Complaints Act, no. 4, 1992.

 

 

returned the fire killing seven young men.  Residents disputed the police version and stated that the men were beaten and then executed.  Numerous individuals and civic organisations have commented on the killing, some in support of the police and some in condemnation.  The Opposition Jamaica Labour Party expressed alarm at the spate of police killings and like many human rights and civic organisations has called for a full investigation and independent inquiry.  The question of the fairness and efficiency of investigations conducted by the police where policemen are involved has again been raised and debated in civil society.  Amnesty Internation²⁰ has joined local human rights organisations not only in expressing concern at the high rate of police killings but also in calling on government to devise and implement effective strategies for protecting the people of Jamaica against human rights violations and for the investigation and punishment of those who violate those rights. 

37.       The death penalty has been an another issue of continuous and emotional public debate.  The vast majority of citizens supports the death penalty, although public opinion as to the cases and circumstances in which it should be imposed vary greatly.  A minority has consistently opposed the death penalty for a variety of reasons which are primarily religious, moral and legal.²¹  The Human Rights Council has persistently opposed the retention of the death penalty on the ground primarily that it is inconsistent with contemporary human rights principles and trends.  Article 6 of the International Covenant on Civil and Political Rights states:

“In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at 

 

 

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²⁰          A.I. Press Release, AMR 38/010/2001, April 4, 2001.

 

²¹             See the Statement on Capital Punishment published by the Human Development and Social Justice Commission of the Roman Catholic Archdiocese of Kingston (1989)

 

the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide.  This penalty can only be carried out pursuant to a final judgment rendered by a competent court.” and

            “Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence.  Amnesty, pardon or commutation of the sentence of death may be granted in all cases.”

Both conventional and constitutional law imply that the death sentence offends human rights principles but do not prohibit it where it already exists as part of a country’s law.  However, human rights activists have urged the authorities that all efforts should be made to ensure that no one is executed unless the most scrupulous care is taken in the conduct and completion of all available legal processes.

38.       The Human Rights Council has endeavoured to ensure that death row prisoners are given effective legal representation, and that their petitions for commutation are properly considered.  In cooperation with voluntary organisations such as the Solicitors and Barristers Committees in London their appeals to the Judicial Committee of the Privy Council and the International Human Rights Agencies have been facilitated.  Most notably, in the cases of Pratt and Morgan²² and Neville Lewis²³ this unofficial legal aid team has succeeded in obtaining decisions from the Privy Council that where execution of the sentence of death has been delayed for 5 years or more its imposition becomes inhumane and unconstitutional and a person sentenced to death is entitled to due process in the consideration of his petition for mercy.

39.       The problems of crime and police abuse of power can only be solved by comprehensive

policies, programmes and reforms: There are already reports and recommendations by

distinguished bodies, notably the Wolfe Report, which analyse the problems and put forward

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²²          Pratt v. Attorney-General for Jamaica [1944] 2 A.C. 1.

²³          Lewis v. Attorney-General of Jamaica [2000] 3 W.L.R. 1785.

strategies for solving the problem.  What is needed is a specific plan of implementation which sets out the targets and the objectives as well as the methodology and time-table.  Some specific recommendations include:

(i)                 Increasing enrolment and attendance in schools;

(ii)              Providing vocational training through a national youth service to involve the large number of unemployed youth in a disciplined programme of self-development;

(iii)            Induce economic growth by, among other things, seeking to utilise the national resources of the land and its produce with the abundant manpower resources;

(iv)             Have a comprehensive programme for improving the physical environment in the inner city and poorer communities;

(v)                Establish a competent body to investigate police abuses; and

(vi)             Strengthen the mobility, communications facilities and skills of the police in crime prevention and detection.

6.  The Right to Due Process of Law

40.       Article 10 of the Universal Declaration of Human Rights states:

“Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.”

Article 11 states:

“Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.”

These provisions have been re-echoed in the Jamaican Constitution.  Professional legal associations and human rights organisations constantly strive to ensure that these standards are maintained.

41.       Until the recent enactment of the new Legal Aid Act²⁴, legal aid in criminal cases was

confined to a limited number of specified offences.  It has therefore fallen on the legal profession to supplement the inadequate legal aid system.  In cases in which questions involving the constitutional rights of accused persons arose the Human Rights Council often provided legal aid.  In civil matters there is virtually no statutory legal aid scheme and even now this part of the new Act has not been implemented.  Again access to justice by poor persons have had to be provided by Legal Aid Clinics, the legal profession and the Human Rights Council.  There are three Legal Aid Clinics each receiving greater or lesser governmental support.  The Kingston Legal Aid Clinic and the Montego Bay Legal Aid Clinic are non-governmental organisations which receive some public subvention.  The third, the Norman Manley Law School Legal Aid Clinic, is administered by the Council of Legal Education which is an inter-governmental organisation.  There are many cases and situations in which there is cooperation between the lawyers’ association, the Legal Aid Clinics and the Human Rights organisations.

42.       Jamaica as a party to ICCPR has undertaken in Article 2.3

“(a)  to ensure that any persons whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity; (b)  To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial,

administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy; (c)  To ensure that the competent authorities shall enforce such remedies when granted.

43.       Civic organisations have separately and jointly, in consultation and cooperation,

examined legislative proposals and draft legislation to ensure that they do not make provisions

which erode these principles of fundamental justice.  In some cases joint strategies are worked out to make representations or protests against policies or legislation which are aimed at reversing the burden of proof, compelling citizens to incriminate themselves or deprive them of

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²⁴          The Legal Aid Act, no. 36, 1997.

adequate facilities to defend themselves or otherwise threaten to infringe individual freedoms.  A notable example was the protests in 2000 against a provision in the Corruption of Prevention Bill for the infliction of harsh penalties for the disclosure of information respecting the returns of assets made by officials.

44.       The right to due process can only be effectively protected if the substantive as well as

procedural legal rules adequately guaranteed the right and facilitate access to the courts for remedial action where the right is abrogated.  It is therefore recommended that:

(i)        the proposed reform of the Constitution to introduce a modern and comprehensive Charter of Rights be expedited.

(ii)      the reform and modernisation of the machinery of justice be treated as a priority, including the use wherever practicable of new technology; and

(iii)     that the rules of procedure and the facilities for obtaining legal representation be amended and reformed to improve and facilitate citizen’s access to the courts.

7.  The Right of Political Participation

45.       We have noted that in the transfer of power from the colonial rulers to local politicians very little had been done to safeguard the rights of citizens.  Not surprisingly, therefore, the Independence Constitution gives no direct or effective guarantee of the right to vote and makes no provision to ensure that government once elected consults the people on a regular basis.

46.      Article 21 of the Universal Declaration of Human Rights states:

“(1) Everyone has the right to take part in the government of his country, directly or through freely chosen representatives. (2) Everyone has the right of equal access to public service in his country. (3) The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.”

47.       The electoral process has been marred by violence, intimidation, corruption and

irregularities.  Although it is generally felt that these incidents have not resulted in the accession to power of a Party which did not have the support of a majority of the electorate they have been sufficiently serious to cause great concern.  Small groups including church leaders have from time to time sought to intervene by appeals to political activists and extremists and by monitoring some polling stations to exert an influence for good on the electoral proceedings. 

48.    A most significant development occurred in the 1997 National and 1998 Local Government Elections.  A new civic organisation, Citizens Action for Free and Fair Elections (CAFFE) was launched  to recruit volunteers to monitor the elections.  This organisation had remarkable success as hundreds of citizens volunteered and during the elections attended at polling stations throughout the Island.  In carrying out its mission, CAFFE had the support of the Political Parties, the Churches, the legal and teaching profession, large numbers of citizens and the Electoral Advisory Committee which is the statutory body responsible for the conduct of elections.  The opinion is generally held that CAFFE played a significant role in minimising the irregularities in the more recent elections and in producing a much better level of fairness than in previous elections.²⁵

49.         Opinion Polls have consistently indicated that there is widespread disaffection with the

political process.  The number of uncommitted electors have reached unprecedented levels and the percentage indicated by the public opinion polls exceed 60%.²⁶  The Government has acknowledged that it has failed to communicate adequately with the public.

50.        Several strategies have been attempted in an effort to attract public attention and support.

Town house meetings, “Live and Direct” community talks have been resorted to.  There is widespread apathy and cynicism as, in the face of economic hardships, closure of businesses and redundancy of workers, many feel that there are many words but little achievement and the

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²⁵          See, The 1997 General Elections in Jamaica (March 1998), The Continuing Electoral Reform Process in Jamaica (December 1998), both published by CAFFE

 

²⁶          In the March 2001 by-election in the St. Ann, North East constituency, although the three major political parties pumped huge human and material resources into the campaign, the voter turn out was only 58% of the electorate - Statistics supplied by Electoral Office of Jamaica.

promises are not met by performance.  In this situation talk show hosts and civic organisations attract increasing attention and much public confidence.

51.       Thus there have been many cases of Government policy announcements being met with

protests and consequential reversals of government policy.  A most significant case is that in which in 1999 Government’s Budget proposals called for a high increase in petrol prices.  There were widespread, but mainly peaceful, public protests and demonstrations over a period of at least two days in which several organisations joined or gave their support. Road were blocked by citizens in numerous parts of the Island and there was a notable solidarity in civil society’s opposition to the proposals.  Government was forced to adjust the increases after appointing a “review committee” of private citizens.  These developments have in all probability influenced an important constitutional innovation by which the tax proposals will as from 2001 be examined by a Committee of the House instead of being widely presented as a virtual fait accompli by the Minister of Finance.

52.          Most recently Government announced a retrenchment of teachers on the ground that some schools were overstaffed.  In the face of opposition from the Jamaica Teachers Association, it was announced that the implementation of the policy would be reviewed.  However, the teachers not being satisfied with the review process initiated legal actions to challenge the decision.

53.          There is an interesting debate in progress concerning the decision of the Government to

abolish appeals to the Judicial Committee of the Privy Council and substitute in its place appeals to a Caribbean Court of Justice established in collaboration with other Caribbean Governments.  There has been considerable opposition to this proposal from various civil organisations either on the grounds of the desirability of retaining the Privy Council appeals, defects in the plans for establishing the regional court or inappropriateness of the timing of the change.  An even more significant factor in this debate is the widespread feeling among many that a referendum should be held formally to ascertain the will of the people and secondly to entrench in the Constitution the proposed Caribbean Court of Justice if it is acceptable.  Some civic organisations have individually and in combination been waging a campaign on these issues.

54.              Government has voiced²⁷ a recognition of the importance of involving the society at large

in decision-making and policy implementation.  Parish Development Committees have been established, with representatives of the Government, the private sector and civil society to facilitate structured dialogue and opportunities for decision-making at community and parish levels.  There is an all-Jamaica Volunteers Group associated with the Custos of each Parish which has the function of fostering volunteerism and coordinating voluntary programmes.  It is yet to be demonstrated that these bodies will have any true influence on local administration or national government or that they will be provided with effective access to the wielders of power.

55.       Effective people participation must be recognised as an important factor of good

governance.  It is therefore recommended that the basic conditions for facilitating the participation should be created.  This includes freedom of information legislation which permits the public and civic organisations to make intelligent and informed assessments of matters of public interest and government performance, the widespread propagation of materials and information respecting these matters and the establishment of procedures for meaningful and regular consultations with civil society.  It is also necessary to educate the public in the value of participation and therefore educational programmes in the schools and communities with those objectives should be organised.

8.  Women’s Rights

56.       The second Article of the Universal Declaration of Human Rights states:

“Everyone is entitled to all the rights and freedoms set forth in this Declaration,

without distinction of any kind, such as race, colour, sex, language, religion,

 

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²⁷          See, for example, The Throne Speech for the 2001-2002 Financial Year, The Daily Gleaner. April 3, 2001, C.11.

political or other opinion, national or social origin, property, birth or other statutes”. 

It is in the area of discrimination on the grounds of sex that there has been the most significant activity by non-governmental organisations in so far as improper discriminatory laws and practices are concerned.

57.      As a party to the ICCPR Jamaica accepted the provisions of Article 23 which states:

“(1) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.  (2) The right of men and women of marriageable age to marry and to found a family shall be recognized.  (3) No marriage shall be entered into without the free and full consent of the intending spouses.   (4) States Parties to the present Covenant shall take appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution.  In the case of dissolution, provision shall be made for the necessary protection of any children.”

58.       In the early part of the 1970's new initiatives were launched in the area of women’s rights.  The National Council for UNESCO, which is an body set up by the Government in accordance with its obligations to UNESCO and on which there are representatives of non-governmental organisations, organised a regional conference on the human rights of women.  A Women’s Bureau was established in the Government Administration to promote women’s rights and to work towards the elimination of all forms of discrimination against women.  There are many women’s organisations which advocated the removal or revocation of laws and practices which discriminated against women.

58.       In the result, legislation of social significance have been enacted to promote and protect the rights of women.  These include: (1) the Law Reform (Husband and Wife) Act (1970) which abolished an old common law rule to permit each party to a marriage to have the like right of action against the other as if they were not married;  (2) The Employment (Equal Pay for Men and Women) Act (1975), which requires payment for the same rate on scale of remuneration to male and female employees who are performing the same duties and working under the same condition; (3) The Maternity Leave Act (1979), which imposes a duty on employers to grant paid maternity leave to expectant mothers who have been in their employment for 52 weeks and gives the worker a right to return to work with her employer at the end of the maternity leave; (4) An amendment to the Intestates Estates and Property Charges Act (1988) to include in the protection given to spouses, a single woman who has cohabited with a single man for five years and to increase the amounts distributed to the “spouse” under the intestacy of the deceased partner; (5) The Inheritance (Provision For Family and Dependents) Act (1993), which gives the Court power where it considers that a deceased person’s will or the law in relation to intestacy has not made reasonable provisions for his family or dependents to make orders for payment to those persons out of the estate as it considers reasonable; and (6) The Domestic Violence Act (1996) which grants the Court power to make protection orders where a spouse, child or dependent is subjected to or threatened by violent or abusive conduct and provides that such orders may prohibit the responsible party from entering the household residence or place of work or education of the threatened party. 

60.       Some civic organisations dedicated to protecting and promoting the human rights of women  are: Jamaica Household Workers Association (1973) devoted to women’s development and engaged in education, training, humanitarian assistance and networking; Sistren Theatre Collective (1977) devoted to the development of women and engages in education and training, advocacy, community development and networking;  Woman Inc. (1983) with the objective of women’s development and its main activities are counselling, humanitarian assistance and public education and focuses on domestic violence as it affects women and children; Women’s Construction Collective (1986) with the objective of women’s development and the provision of shelter and housing.  It’s main activities are education and training, small business promotion, employment creation, counselling and community development; The Association of Women’s Organisations (1987) seeks to coordinate on a national basis the work of the women’s NGOs in Jamaica;  St. Peter’s Claver Women’s Housing Cooperative (1988), the main purpose of which is to provide shelter and housing for homeless women and its main activities are education and training, infrastructure and community development, networking; Women’s Political Caucus  (1992) has the objective of preparing women for and facilitating their involvement in representative politics; Women’s Media Watch seeks to raise awareness about gender issues in the media.  The Caribbean Association for Feminist Research is a regional network of feminists, researchers and women’s organisations which are involved in the study of the relationship between the oppression of women and other social groups and to bring about reform.

61.       All these organisations have been working in cooperation with government ministries,

departments and agencies with related responsibilities.  Representatives of women’s organisations are consulted in the formulation of policy affecting women and the family and cooperate in the implementation of social welfare programmes.

62.       A National Policy Statement on Women was developed in 1987 by the Bureau of Women’s Affairs working with a inter-Ministerial Committee in consultation with women’s non-governmental organisations.  The objective of the Policy Statement is to implement the principles of CEDAW in respect of the human rights of women.

63.       It is recommended that there should now be an assessment of the extent to which the

objectives of the National Policy Statement have been achieved and whether those objectives need to be updated in the context of changing social conditions.  In particular legislative measures which have been introduced over the last thirty years need to be re-examined to ascertain if they are working satisfactorily or require further reforms.

9.  The Rights of the Child

64.       Article 25 of the Universal Declaration of Human Rights states:

 “Motherhood and childhood are entitled to special care and assistance.  All children, whether born in or out of wedlock, shall enjoy the same social protection”.

 

 

            Article 26 states:

“(1) Everyone has the right to education.  Education shall be free, at least in the elementary and fundamental stages.  Elementary education shall be compulsory.  Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit.  (2) Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms.  It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace.”

65.       In Jamaica’s Five Year Development Plan for Children (1990-1995), the contribution of the United Nations Convention on the Rights of the Child to the legislative process in Jamaica is acknowledged, as is its contribution as a guideline by which the development of services for children can be charted within the overall objective of the Five-Year Development Plan.  The Plan states that the Convention will be used as a basis for the Development of National and Sectoral Policies for children and therefore integrated into the consultation, formulation and implementation strategies of national and sectoral policy development, and resultant Plan of Action.  In accordance with article 4 of this Convention there has been co-operation with UNICEF in the effort to implement article 25 of the Convention in particular through the country Programme for Children in Especially Difficult Circumstances undertaken by the Ministry of Youth and the Ministry of Health and through the work of a specialist committee on child abuse which deals among other things with reform of legislation affecting children and the organisation of workshops for the training of personnel who deal with children.

66.       Both the private and official treatment of children fail to meet acceptable standards.

 

 

 

Available statistics relating to violence against children indicate that they suffer from high levels of  abuse and violence²⁸.  Civil society has not been sufficiently sensitive and alert to this situation and within some family circles are actually tolerant in attitude to the perpetration of these wrongs.

67.       In 1994 the U.S. based Human Rights Watch published a report on children in Jamaica

police lock-ups which demonstrated that they were kept in atrocious conditions.  Further research

was conducted by this body in 1998 and they came to the following conclusion:

“Jamaican children in police lockups are truly “nobody’s children”.  Whether they are accused of offences or have been taken into police custody because they are “in need of care and protection,” they languish in filthy, overcrowded cells for weeks and months on end.  They eat stale, rotten and inadequate food and sleep on damp concrete or urine-soaked bits of newspaper or cardboard, crammed in with other prisoners who are frequently adults accused of violent crimes.  The children are rarely permitted out into fresh air, and receive no regular exercise, education, or health care.  At times, they are physically abused by other prisoners or by the police themselves.  Meanwhile, Jamaican state agencies vie with one another to disclaim all responsibility for the children’s plight.”

The Independent Jamaica Council for Human Rights has facilitated these studies and urged

Government to bring an end to these violations of human rights. 

68.        At the primary level of the educational system, many children are still not in schools and of those who are registered a significant number are irregular in attendance.  There is no effective programme for ensuring attendance at schools. The Jamaica Teachers Association has

 

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²⁸          See Appendix III.

 

Expressed concern at this situation.  In addition, large numbers of children who qualify for admission to the secondary level are unable to gain places.  There is substantial underachievement in the educational system and official reports indicate that many children in school are not attaining the minimum literacy standards.  Primary and early childhood education are not free and the facilities are limited and of varying quality.  The Constitutional Commission in which many non-governmental organisations were represented in its Report to Parliament has recommended that education at least to the primary level should be free and guaranteed in the fundamental provisions of the Constitution.

69.          There is an impressive array of civic organisations which are devoted to protecting and

promoting the human rights of children.  Those established in the post-Independence period include: Save the Children Canada (1967) U.K.(1987), formed to promote children’s services, it engages in education and training, advocacy and counselling, employment creation.  The Jamaica Association for Children with Learning Disabilities (1976) was formed to provide children’s services, education and training for disabled children; Jamaica Coalition on the Rights of the Child (1989) formed to provide children’s services, education and technical assistance, engages in public education and advocacy. Jamaica Foundation for Children (1986), formed to provide children’s services, it engages in public education and advocacy. Jamaica National Youth Council (1989), formed to promote youth development, it engages in education and training and humanitarian assistance and advocacy; Peace and Love in Schools (PALS) (1994), formed to promote youth development, it engages in public education and counselling

70.   The country’s future is only as promising as its next generation of citizens.  Recommendations have already been made in this paper with respect to the enrolment and attendance of children in school.  It is recommended that this be treated as a matter of utmost priority.  In some cases it will be necessary to devise programmes to assist parents whose means deter them from sending their children to school.  Since it is recognised that the early years of a person’s life play a decisive role in character formation and personal development, great emphasis needs to be placed on early childhood education by ensuring an adequate number of specialist teachers and the effective monitoring of institutions which have the care of infants and young children.  Not only legal but adequate administrative systems must be established to ensure that children are protected against abuse, neglect or exploitations as well as to allow children to play an active role in their communities and civic organisations.

10.  Rights of the Disabled

71.        It is estimated that approximately 10% of the Jamaican population suffers from some sort of disability, physical, intellectual, sensory or medical.  In some cases the disability is temporary and can be removed by competent medical or psychiatric treatment.  The Preamble to ICCPR recognises and affirms that the “idea of free human beings enjoying civil and political freedom and freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy his civil and political rights as well as his economic, social and cultural rights”.  The recognition of this essential principle demands that steps be taken to ensure that the disabled in society are empowered to claim their legal right to equal participation and to be protected against discrimination.  Several countries including the United Kingdom, Canada, Australia, New Zealand and the United States have enacted legislation which seeks to confer equal rights on disabled persons.

72.        Under the aegis of the United Nations several studies have been conducted on the guidelines, principles and guarantees for the protection of disabled persons, including persons suffering from mental disorder.  In 1944 the U.N. Commission for Social Development compiled The Standard Rules on the Equalisation of Opportunities for Persons with Disabilities.  It is therefore now generally accepted that the State and society as a whole has an obligation to implement measures to protect the rights of disabled persons.  In Jamaica, civil society has been particularly prominent in the efforts to achieve acceptable standards.  The Jamaica Association for the Deaf and the Caribbean Christian Centre for the Deaf, the Maranatha School for the Deaf and the Danny Williams School for the Deaf are devoted to assisting persons with auditory disabilities.  The Salvation Army School for the Blind and Visually Impaired and the Jamaica Society for the Blind are devoted to assisting the visually impaired. Jamaica Association for Mentally Handicapped and The Carberry Court School are devoted to assisting the intellectually impaired.  The Mind Rehabilitation Centre and The Hope Valley Experimental School are devoted to assisting the physically impaired.  The Jamaica Council for Persons with Disabilities provides net-working and assistance in all areas of impairment and seek to increase public consciousness of the needs of the disabled.

73.         Government response to the civil society initiatives is unsatisfactory.  This is probably because the treatment of the disabled has not become a political issue.  There is no legislation

of a general nature which has as its purpose the protection of the rights of the disabled.  Planning and building laws and regulations are devoid of standards for the protection of the well-being of the disabled.  Both private and public erections ignore the welfare of disabled persons.  Sidewalks and pavements are uneven and frequently have gaping holes which endanger the lives of the disabled.  Civil organisations recently had to protest an urban beautification project which resulted in concrete planter boxes being placed on the sidewalks in such a way as to obstruct the visually impaired and prevent access to wheel chairs.

74.       In recent times the scandalous episode of the removal of several persons many of whom are mentally ill from the streets of Montego Bay, the binding of their hands and transporting them in the night for a considerable distance to a different parish where they were abandoned has shocked the conscience of the nation and aroused the condemnation of civil society.  This led to the eventual appointment of a Commission of Enquiry which civilian organisations demanded and obtained despite Government’s initial resistance.  Jamaicans for Justice, a human rights organisation, provided legal representation for several of these “street people”.

75.       Another scandalous incident occurred also recently when a mentally impaired man, Michael Gayle, was beaten to death in a public place by members of the Security Forces.  Again civil society demanded that the matter be properly investigated and the perpetrators brought to justice.  Jamaicans for Justice ensured that a proper post-mortem examination was conducted.  So far no one has been prosecuted but civil action has been filed on behalf of the deceased’s estate.

76.       The Human Rights Council has recently revealed that over 400 persons are detained in the prisons by reason of their having been ordered by the Courts to be medically examined to determine their fitness to stand trial or found by the Courts to be suffering from mental illness.  Some have recovered and have been certified to be fit to plead but despite this have continued in detention for several years without trial.  Others were found guilty of a criminal offence but adjudged to have been insane or otherwise mentally abnormal.  They have been kept without any review of their cases or condition.  There is inadequate accommodation and a shortage of medical personnel and facilities. These persons have been exposed to the physical violence and sexual abuse of other inmates.  The Human Rights Council has drawn public attention to this disgraceful situation and urged the authorities to initiate programmes for remedying the condition of these detainees.

77.       The Government has responded in some measure to demands to recognize the State’s

responsibility towards disabled persons by the enactment of the Income Tax (Exemption) Act  in 1983 which affords to persons, who are certified by the Minister of Social Security to be suffering from permanent physical or mental disability, the right to income tax exemption.  With proper identification persons with disabilities are entitled to reserved seats and reduced fares on public bus transportation and to a reduced rate of interest on loans obtained from the National Housing Trust.  There are also provisions under the National Insurance Scheme for disablement pension.

78.       It is recommended that a National Policy for the Disabled be formulated and published

with clear programmes for implementation, including the enactment of laws and regulations which take into account their needs.  In the case of the mentally ill, mechanisms must be established not only to ensure early diagnosis and adequate treatment but also to achieve transparency and fairness in the medico-legal process.  Persons who suffer from communicable diseases such as AIDS must be protected against unfair discrimination and the infringements of their privacy.

 

11.   Workers’ Rights

79.       Article 6 of the International Covenant on Economic, Social and Cultural Rights states:

“1.  The States Parties to the present Covenant recognize the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts, and will take appropriate steps to safeguard this right.      2.  The steps to be taken by a State Party to the present Covenant to achieve the full realization of this right shall include technical and vocational guidance and training programmes, policies and techniques to achieve steady economic, social and cultural development and full and productive employment under conditions safeguarding fundamental political and economic freedoms to the individual.”

Article 7 of this Covenant further provides:

“The States Parties to the present Covenant recognize the right of everyone to the enjoyment of just and favourable conditions of work which ensure, in particular:     (a) Remuneration which provides all workers, as a minimum, with: 

(i)                  Fair wages and equal remuneration for work of equal value without distinction of any kind, in particular women being guaranteed conditions of work not inferior to those enjoyed by men, with equal pay for equal work;

(ii)                A decent living for themselves and their families in accordance with the provisions of the present Covenant;

(iii)               Safe and healthy working conditions;

                        (iv)       Equal opportunity for everyone to be promoted in his employment to an appropriate higher level, subject to no considerations other than those of seniority and competence;

                        (v)        Rest, leisure and reasonable limitation of working hours and periodic holidays with pay, as well as remuneration for public holidays.”

80.       Among civic organisations the trade unions have been the most powerful and influential.

The two major political parties have been allied to national trade unions, the N.W.U. in the case of the Peoples National Party and the B.I.T.U. in the case of the Jamaica Labour Party.  Trade Union leaders have been prominent in politics and have gained public offices as Prime Ministers, Ministers of Government and parliamentarians.

81.       There are many trade unions and workers organisations.  Some deal with specialist,

professional and sectoral areas.  These all seek to obtain for their members better terms of employment and protection against unfair treatment or disadvantageous legislative measures.  The major trade unions are members of a Joint Trade Union Council which coordinates their activities in the education of their members on industrial relations issues and their advocacy for workers’ rights.

82.        Trade Unions have thus been able to influence the formulation of government policy and the drawing up of public programmes.  This influence has been exerted for the securing and strengthening of workers’ rights in the context of the international human rights provisions and the socio-economic circumstances of the country.  To a great extent trade union successes in this area have been facilitated by the Government’s acceptance of many of the I.L.O. Conventions and Recommendations in this field.

83.       The right to join trade unions is not only entrenched in the Constitution but is specifically

protected by the Labour Relations and Industrial Disputes Act which makes it an offence for any person to hinder or penalise a worker who is exercising his rights to join a trade union.  However the right of an individual worker is not protected with respect to bargaining with his employer and only the trade union that wins a majority of votes secures this right.

84.       By virtue of collective bargaining the trade unions have been able to secure increased

remuneration and improved working conditions for their members.  However in those areas where workers are not organised in formal trade unions their rights are more vulnerable.  In this respect representations by civic groups as well as trade unions have been able to obtain the prescription of minimum wages for many of these categories and other provisions which protect both unionised and non-unionised workers.  Thus the statutory provisions relating to minimum periods of notice for dismissal of workers, vacation and sick leave and redundancy payments in certain circumstances are of general application.

85.        There is need for greater participation of workers in the central administration of trade unions and the democratisation of the trade union’s administration.  It is also recommended that a comprehensive and continuous programme of workers education in industrial relations, human rights of workers, worker participation and responsibility be undertaken by employers’ and workers’ organisations and other civic organisations.

12.  Right to an adequate standards of living

86.       Article 11 of the International Covenant on Economic, Social and Cultural Rights states:

“The State Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions.  The State Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consent.”

87.       The UNDP Human Development Report 2000 places Jamaica in the Group of countries

described as having medium human rights development and at 83^rd in the overall list.  Among Caribbean countries, Jamaica is listed below Barbados, Bahamas, Antigua and Barbuda, St. Kitts and Nevis, Trinidad and Tobago, Dominica, Grenada, Cuba, Belize and St. Vincent and the Grenadines.

88.       There has been very little change in the literacy rate in Jamaica in recent years.  Student

enrolment has been of the order of 70% of the school age population and at the secondary level the rate is approximately 38%.  The factors identified as contributing to this unsatisfactory situation are inadequate school places, inconsistent teaching standards, economic pressures on households and social attitudes.  Since educational attainment has a direct impact on living standards the implications are quite far-reaching.  On the basis of the Jamaica Survey on Living Conditions 1998 Report published by the Planning Institute of Jamaica and the Statistical Institute of Jamaica, 15.9% of Jamaican households fell below the poverty line.  It is believed that even this unsatisfactory percentage is achieved by reason of the significant contribution of the informal and underground economy.  The social implications of this situation are serious in view of the fact that the wealthiest 20.0% of the population control 45% of the national consumption and more than 2/3 of the households consume less than $20,000 per month. However, since economic growth has been stagnated in recent years the prospects of improving living conditions significantly and reducing the gap between the rich and poor are not very good.

89.       Civil society has understandably been unable to influence the macro-economic policies and major programmes in the area of human development.  Many civic organisations carry out  extremely valuable social services but they are compelled to treat the consequences rather than to participate  in the devising and implementation of macro-socio-economic solutions and programmes.  In January 1999 the Prime Minister spearheaded the National Roundtable Consultations which he hailed as “a turning point in the nation’s movement towards a more consultative form of governance”.  Different sections of the Jamaican society were brought together in the consultations to discuss the challenges being faced by the country and to make recommendations for the finding and implementation of solutions to these problems.  Although the event was projected as part of an ongoing exercise there has so far been little or no evidence of continuity.

90.       Nevertheless the multiplicity and variety of civic organisations which are engaged in the socio-economic field are impressive.  In some cases they are national in scope though confined to a single subject.  In some cases their area of operation is limited geographically although they deal with a variety of subjects.  Many of these organisations have already been mentioned in this paper.

91.       In education and training there are among many others:

(1)               American Field Services (AFS) Intercultural Programmes which deals with youth development, humanitarian assistance and networking.

(2)               Jamaica Association for Youth and Student Tourists which arranges overseas exchange programmes and for training in the tourism industry.

(3)               Jamaica Women’s League which provides education and training with the aim of promoting women’s development.

(4)               Chinese Benevolent Association which is involved in education, training and counselling for the Chinese community.

92.       In the field of Health the civic organisations include the following:

(1)               Addiction Alert which deals with the problems of addiction and substance abuse through counselling and public education.

(2)               Jamaica-America Medical Assistance Committee which provides humanitarian and technical assistance in the provision of health services.

(3)               Jamaica Cancer Society provides health services, counselling and education in respect of cancer.

(4)               Jamaica Family Planning Association which is engaged in public education and counselling.

93.       In Human and Social Development there are among many others:

(1)        Assist Ltd. which deals with this area through education and training in business administration, technical assistance and small business development.

(2)        Brothers of the Poor/Missionaries of the Poor which is dedicated to providing humanitarian assistance through counselling and public education.

(3)        Construction Resource and Development Centre which seeks to provide housing                                      and shelter by infrastructure development and technical assistance.

(4)        Human Development and Social Development Commission which has a religious base but is mainly concerned with community and organisational development.

(5)        Jamaica Household Workers’ Association which deals with education, training and humanitarian assistance for a body of workers who do not enjoy the protection of the traditional union organisation.

(6)        Operation Friendship which deals with education and training, counselling and small business/employment creation.

94.       In Community Development there are among others:

            (1)        (The Association of Development Agencies which is engaged in development and empowerment of community organisations.

            (2)        The Bluefields People’s Community Association which seeks to foster sustainable development in the Bluefield’s neighbourhood through small businesses and employment creation.

            (3)        Grace & Staff Community Development Foundation which works through education and training and small business and employment creation.

            (4)        Kingston Restoration Company Ltd., which is concerned with metropolitan infrastructural development and technical assistance.

            (5)        Mennonite Central Committee which deals with humanitarian assistance, volunteer placement, education and training.

            (6)        S-Corner Clinic & Community Development Organisation which deals with infrastructure, health through education and training.

            (7)        St. Mary Rural Development Project which is engaged in rural development, agricultural and organisational development and environmental protection.

            (8)        Trelawny Environmental Protection Association which is similar to (7).

95.       In Environmental Protection examples are:

            (1)        The Black River Environment Protection Association which deals with the preservation of the environment in the Black River area through public education.

            (2)        Negril Coral Reef Preservation Society which conducts research, and public education and training.

            (3)        Portland Environmental Protection Association which deals with environmental protection and development through public education and advocacy.

            (4)        St. Ann Environment Protection Association which is involved in public education and research.

            (5)        Jamaica Conservation & Development Trust which deals with environmental protection and technical assistance.

            (6)        National Environmental Societies Trust which conducts research and provides technical assistance and organisational development.

96.        Civic and human rights organisations must play an active role in seeking for the advancement of the socio-economic rights of the disadvantaged.  This should be done to ensure that no segment of the population is denied the competent representation which it needs.  There should also be a conscious effort to include the ordinary citizen in the planning and work of these organisations so that they may be true partners in the advocacy and planning for improved socio-economic conditions.

C.  CONCLUSION

97.      The historical antecedents, cultural traditions and social norms which have inspired the

establishment of a plethora of civic organisations have produced in Jamaica a fertile field for the growth of a culture of human rights.  In 1997 the Conference of Heads of Government of the Caribbean Community passed a Resolution adopting a Charter of Civil Society for the Caribbean Community which declared, among other things, that “the people have an important role to play in the pursuit and maintenance of good governance” and the states undertook to enhance “the promotion, establishment and maintenance of community based organisations”.  There has been very little done by government to fulfil these objectives and obligations.  In fact, the provisions of the Charter for the Government to undertake consultation with the social partners in making reports on its compliance with the provisions of the Charter have not been implemented.

98.      The effective realization of human rights - legal, social and economic - requires the

commitment, active participation and harmonious cooperation of all sectors of society, including in particular government and public entities, the corporate citizenry, non-governmental organisations, the media and educational institutions.  It is important that there should be networking and the construction of alliances for promoting human rights among the myriad of civic organisations which is active in the field.  Cooperative efforts are even more important because of the limited financial resources from which most voluntary civic organisations suffer.  The elimination of the duplication of effort and the provision of support for fledgling or faltering groups need to be carefully pursued.  The successful achievement of these objectives will provide the most secure foundation for the preservation of democracy and the rule of law, the achievement of social justice and the effective realization of legal and civil rights as well as economic, social and cultural rights.

 

 

 

 

 

 

 

 

 

 

LLOYD BARNETT

APRIL, 2001

 

 

 

 

APPENDIX I

MAJOR CRIMES & LARCENY COMMITTED IN JAMAICA FOR PERIOD 01/01/1970 TO 31/12/2000

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

APPENDIX III

 

MAJOR CRIMES AGAINST CHILDREN 1995-2000

 

 

 

 

 

 

 

Obtained from the Police Statistics Department

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

APPENDIX II

 

POLICE KILLED AND KILLINGS BY THE POLICE 1996-2000

 

                                                                1996                        1997                        1998                        1999                        2000

 

Police Killed                                              10                            13                            14                              8                            11

 

Fatal shootings   

   by the Police                                        148                          149                          145                          151                          140

 

 

 

 

 

 

 

 

 

 

 

Obtained from the Police Statistics Department

Telephone - 927-3412

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

ABSTRACT

 

            The Paper commences by tracing the development of civil society through the period of colonialisation and slavery to Independence and advances the thesis that modern civil society has emerged from the struggles commenced in that period against oppression, injustice and social inequity.  In the quest for democracy civil society played an important part in advocating constitutional reform as an instrument for the socio-economic transformation of the country.

 

            Non-governmental organisations grew up with strong traditions of independence as well as deep commitment to charitable work in a variety of social areas.

 

            Independence was attained at a time when human rights was becoming increasingly internationalised and civil organisations in the context of the constitutional bill of rights as well as international human rights norms advocated the effective realisation of the rights for all citizens.

 

            There is in the result a plethora of civic organisations operating in the various fields of human rights largely independently of each other and to a certain extent hampered by lack of cooperation and limited resources.  The current challenge is to create instruments of coordination on the horizontal plane and facilities for participation in their relationships with Government on the vertical plane.

 

 

 

 

LLOYD BARNETT

 

APRIL 2001            

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

CIVIL SOCIETY AND HUMAN RIGHTS

 

 

 

 

CONTENTS

 

ABSTRACT

 

                                                                                                                                                Paras.                    Pages

 

A.        THE HISTORICAL BACKGROUND

 

1.                    The Struggle for Freedom                                                   1-8                           1-4

2.                    The Quest for Democracy                                                  9-16                         4-8

3.                    The Road to Independence                                                             17-19                          8-9

 

B.            THE POST-INDEPENDENCE AND CONTEMPORARY

                PERIOD

 

4.                                            Meeting new challenges                                              20-26                              9-12

5.                                            The Right to life and security of the person             27-39                        12-19

6.                                            The Right to due process of law                                40-44                        19-22

7.                                            The Right of political participation                            45-55                        22-26

8.                                            Women’s Rights                                                           56-63                26-29

9.                                            The Rights of the Child                                                64-70                        29-33

10.                                         The Rights of the Disabled                                                         71-78                        33-36

11.                                         Workers’ Rights                                                            79-85                        36-39

12.                                         Right to adequate standards of living                       86-96                        39-44

 

C.            CONCLUSION                                                                                                    97                        44-45

 

APPENDICES 

 

                I           Major crimes & larceny committed in Jamaica for period

                                01/01/1970 to 31/12/2000

 

                II             Police killed and killings by the police

 

                III        Major crimes against children 1995-2000

                               

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

CIVIL SOCIETY AND HUMAN RIGHTS

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

LLOYD BARNETT

 

APRIL 2001            

“CIVIL SOCIETY AND HUMAN RIGHTS”

 

                                                                                                                                                                LLOYD BARNETT, O.J., PH.D.

 

Summary of paper presented at UNDP Seminar, December 7, 2001

 

            The Paper commences by tracing the development of civil society through the period of colonialisation and slavery to Independence and advances the thesis that modern civil society has emerged from the struggles commenced in that period against oppression, injustice and social inequity.  In the quest for democracy civil society played an important part in advocating constitutional reform as an instrument for the socio-economic transformation of the country.

 

            Non-governmental organisations grew up with strong traditions of independence as well as deep commitment to charitable work in a variety of social areas.

 

            Independence was attained at a time when human rights was becoming increasingly internationalised and civil organisations in the context of the constitutional bill of rights as well as international human rights norms advocated the effective realisation of the rights for all citizens.

 

            There is in the result a plethora of civic organisations operating in the various fields of human rights largely independently of each other and to a certain extent hampered by lack of cooperation and limited resources.  The current challenge is to create instruments of coordination on the horizontal plane and facilities for participation in their relationships with Government on the vertical plane.

 

            Against this background the following conclusions and recommendations are put forward:

 

1.                   An examination of the scope, ideals, programmes and objectives of the many civic

organisations operating in contemporary Jamaica reveals that they have operated within the framework of the Universal Declaration of Human Rights, and the many international Conventions and standards established in the field of human rights.

 

2.         Nevertheless, in the wider society the real scope and significance of international human

rights principles are not well appreciated.  Furthermore, the extent to which the effective realization of human rights both in the civil and the socio-economic fields have been frustrated by failure to adhere to international norms is given only minimal attention.  It is therefore recommended that children should be taught the history of Jamaica in its human rights context and it should be part of the mission of non-governmental organisations to sensitize the public to these universal principles and relate their own activities and goals to international human rights norms.

    

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3.         Violent crime has become Jamaica’s no. 1 problem.  The high incidence of murders, violent crimes, fatal accidents and police killings in the view of many has reached alarming proportions.  It is certainly at highly undesirable levels.  The perception of insecurity and the fear of danger have become an important factor in the social psychology of the Nation.  The more privileged has often demanded strong action, meaning that the security forces should be free to take such steps as they consider expedient or effective without regard to the citizens’ human rights.  Illegal seizures and searches, questionable killings of suspects, the widespread detention of young men without any charge are frequently used devices.   In the 1990s the poorer and less privileged communities which suffer from the indiscriminate use of official force have frequently reacted with demonstrations and protests against what they perceive to be police excesses or violations of their rights.  These civil protest groupings are largely spasmodic in creation and short-lived in duration.  But it is significant that the language of the protests is a demand for justice and respect for human rights.

 

4.             The problems of crime and police abuse of power can only be solved by comprehensive

policies, programmes and reforms: There are already reports and recommendations by distinguished bodies, notably the Wolfe Report, which analyse the problems and put forward strategies for solving the problem.  What is needed is a specific plan of implementation which sets out the targets and the objectives as well as the methodology and time-table.  Some specific recommendations include:

 

            1.         Increasing enrolment and attendance in schools;

 

2.         Providing vocational training through a national youth service to involve the large number of unemployed youth in a disciplined programme of self-development;

 

3.         Induce economic growth by, among other things, seeking to utilise the national resources of the land and its produce with the abundant manpower resources;

 

4.                  Have a comprehensive programme for improving the physical environment in the inner city and poorer communities;

 

5.         Establish a competent body to investigate police abuses; and

 

6.            Strengthen the mobility, communications facilities and skills of the police in crime prevention and detection.

 

5.                  Effective people participation must be recognised as an important factor of good

governance.  It is therefore recommended that the basic conditions for facilitating the participation should be created.  This includes freedom of information legislation which permits the public and civic organisations to make intelligent and informed assessments of matters of

       

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government performance, the widespread propagation of materials and information respecting these matters and the establishment of procedures for meaningful and regular consultations with civil society.  It is also necessary to educate the public in the value of participation and therefore educational programmes in the schools and communities with those objectives should be organised.

 

6.                  A National Policy Statement on Women was developed in 1987 by the Bureau of

Women’s Affairs working with a inter-Ministerial Committee in consultation with women’s non-governmental organisations.  The objective of the Policy Statement is to implement the principles of CEDAW in respect of the human rights of women.  It is recommended that there should now be an assessment of the extent to which the objectives of the National Policy Statement have been achieved and whether those objectives need to be updated in the context of changing social conditions.  In particular legislative measures which have been introduced over the last thirty years need to be re-examined to ascertain if they are working satisfactorily or require further reforms.

 

7.                  The country’s future is only as promising as its next generation of citizens.

Recommendations are made in the paper with respect to the enrolment and attendance of children in school.  It is recommended that this be treated as a matter of utmost priority.  In some cases it will be necessary to devise programmes to assist parents whose means deter them from sending their children to school.  Since it is recognised that the early years of a person’s life play a decisive role in character formation and personal development, great emphasis needs to be placed on early childhood education by ensuring an adequate number of specialist teachers and the effective monitoring of institutions which have the care of infants and young children.  Not only legal but adequate administrative systems must be established to ensure that children are protected against abuse, neglect or exploitations as well as to allow children to play an active role in their communities and civic organisations.

 

8.                  It is recommended that a National Policy for the Disabled be formulated and published

with clear programmes for implementation, including the enactment of laws and regulations which take into account their needs.  In the case of the mentally ill, mechanisms must be established not only to ensure early diagnosis and adequate treatment but also to achieve transparency and fairness in the medico-legal process.  Persons who suffer from communicable diseases such as AIDS must be protected against unfair discrimination and the infringement of their privacy.

 

9.                  There is need for greater participation of workers in the central administration of trade

Unions and the democratisation of the trade union’s administration.  It is also recommended that a comprehensive and continuous programme of workers education in industrial relations, human rights of workers, worker participation and responsibility be undertaken by employers’ and workers’ organisations and other civic organisations.

 

                                                                                                                                                           

 

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10.       Civic and human rights organisations must play an active role in seeking for the advancement of the socio-economic rights of the disadvantaged.  This should be done to ensure that no segment of the population is denied the competent representation which it needs.  There should also be a conscious effort to include the ordinary citizen in the planning and work of these organisations so that they may be true partners in the advocacy and planning for improved socio-economic conditions.