Know Your Rights: The Charter of Fundamental Rights And Freedoms Made Simple

THE STATE HAS AN OBLIGATION TO PROMOTE UNIVERSAL RESPECT FOR, AND OBSERVANCE OF, HUMAN RIGHTS AND FREEDOMS FOR ALL JAMAICAN CITIZENS

SUMMARY OF RIGHTS

The constitution of Jamaica guarantees all these rights for every Jamaican citizen: to life, liberty and security of person Political freedom of thought, conscience, and belief of expression to seek, receive, and distribute information, opinions and ideas to peaceful assembly and association of movement to equality before the law to equitable and human treatment by any public authority from discrimination on the ground of being male or fe male, race, place of origin, class, colour, religion, and political opinions from search of the person and property for protection of private and family life, and privacy of the home of every child to be protected of every child to public educational institution at the pre-pri mary and primary levels to enjoy a healthy and productive environment to vote in free and fair elections of every citizen of Jamaica to be guaranteed a passport from torture, or inhuman or degrading punishment or other treatment to due process to a fair trial of religion

SUMMARY OF RESPONSIBILITIES

ALL PERSONS ARE UNDER A RESPONSIBILITY TO RESPECT AND UPHOLD

THE RIGHTS OF OTHERS RECOGNIZED IN THE CHARTER

We have a responsibility to preserve the rights for ourselves but also for future gen erations. We must ensure that our children have a bright future to look forward to as citizens of a free and democratic society.

Every citizen or member of a community is obligated to:

1. Obey the laws. Every Jamaican citizen must obey the laws of the country.

2. Paying taxes. All citizens must pay their taxes that are used to the betterment of the country.

3. Serving on a jury or as a witness when summoned. All citizens have aright to trial by jury made up of a panel by their peers. Jurors are drawn from the general pop ulation, and once randomly summoned to jury duty are required to be available to serve. A citizen also may be summoned or subpoenaed to serve as a witness during a trial and, if called, has the responsibility to appear and testify under oath regarding information pertinent to a given event.

Voluntary Responsibilities

Other civic responsibilities, while not mandatory, are central to Jamaica’s democracy.

▶ Voting. While voting is a right and privilege of citizenship, it is also a duty or responsi bility. Citizens have a responsibility to participate in their government by registering to vote and voting in elections. By voting, citizens have a voice in their government and help ensure that democracy is maintained.

▶ Being informed. Citizens have the responsibility to stay informed of the issues affecting their communities, as well as national and international issues. This includes being well informed about the social and political issues.

▶ Community involvement and volunteerism. Citizens should contribute to the wellbeing of the community by getting involved through offering their skills and efforts to community projects and no-government organisations.

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Practicing tolerance and being respectful of others. Jamaica is a diverse country, and all citizens have the responsibility to support and protect the rights of others and to respect the differences in opinions, religions, cultures and beliefs.

INTRODUCTION

The Jamaican Constitution is the supreme law that all other Jamaican laws are subjected to. The Charter of Fundamental Rights and Freedoms is the part of the Constitution that protects the basic rights and freedoms that you get just by virtue of being Jamaican.

WHY IS IT IMPORTANT TO KNOW YOUR RIGHTS?

Simply, when you know and understand your rights, you will know when they are being violated and be able to seek redress. That means, going to the police, the courts, a lawyer or an institution such as Jamaicans for Justice to get the support needed to help right the wrong commit ted against you. Also, when you know your rights, you will understand the importance of protecting and respecting another person’s rights which leads to an overall healthier more production society.

THE EVOLUTION OF JAMAICAN CITIZENS’ RIGHTS AND FREEDOMS

Jamaica’s social and political history from the fact that we were once a colony the United Kingdom and most of our ances tors were slaves under their regime. end of World War II, human rights the top of the agenda for many countries and this influenced Jamaica, among countries, being able to gain independence from the United Kingdom.

In 1962, a newly independent Jamaica adopted the Jamaican Constitution, is recognized as the set of principles govern the Jamaican state and provides foundation for the recognition of human rights in the country. These rights reflected in the Universal Declaration Human Rights of 1948, the International

Covenant on Civil and Political Rights of 1966, the International Covenant on Economic, Social and Cultural Rights of 1966, and the 1989 UNICEF Convention on the Rights of the Child and the American Convention on Human Rights of 1969 all of which Jamai ca has ratified and is therefore obligated to implement.

While the 1962 Constitution secured our full independence as a country and reflect ed some rights, many agencies, individuals and parliamentarians argued that it did not

PART ONE: UNDERSTANDING THE ROLE AND STRUCTURE OF THE STATE

Jamaica is a Constitutional Monarchy. This means that the Head of State is the King of England who shares power with the constitutional government headed by the Prime Minister. In Jamaica, the King is only a ceremonial head of state and does not have the power to interfere in the day to day running of the country. As head of state, however, King Charles appoints a governor-general, on the advice of the prime minister, as his representative in Jamaica. Like the King, the governor-general’s role is largely ceremonial. not directly like how the

President is elected by the people in the United States. Remember, when you vote at the polls, you are not voting for the Prime Minister, you are voting for someone who represents a political party or who is an independent candidate.

After the general election is held and a party emerges the victor, the party leader is most times selected as the Prime Minister. However, the official nomination of the Prime Minister is done through Parliament based on the votes of the winning party who holds majority of the seats.

UNDERSTANDING THE EXECUTIVE AND ITS ROLE

The Executive Branch of Government really consists of what is called the Cabinet and the statutory bodies that they oversee. A statutory body is an agency of the state which acts independently in carrying out certain tasks of the State. For example, National Housing Trust and the Passport, Immigration and Citizenship Agency (PICA).

The Cabinet

The Cabinet is made up of the Prime Minister as head of Cabinet and the Minis ters. Ministers are appointed by the Prime Minister. Ministers are appointed either with or without portfolios. There are also Minis ters of State who are junior Ministers that do not sit in Cabinet but support the Ministers that do. Ministers must attend Parliament and parliamentary committees to answer questions from the members of Parliament.

Important Executive of the Government

The Attorney General is the lead legal advisor to the government or the “gov ernment’s lawyer”. Their job is to provide

legal opinions and representation to the government wherever necessary. This is also a post appointed by the Prime Minister.

Director of Public Prosecution is a quali fied attorney-at-law who has responsibility for commencing, continuing or discontin uing criminal prosecutions. The person is appointed by the Governor General of Jamaica, often upon the advice of the Prime Minister and the leader of the Opposition. The framers of the Constitution ensured that the office was independent, so that the holder of the position could not influenced or pressured by any person or authority through the threat of termina tion or compensation. The framers of the Constitution ensured that the office was independent, so that the holder of the position could not influenced or pressured by any person or authority through the threat of termination or compensation. The Constitution does, however, provide for judicial review by the Courts if the holder of the position is deemed ineffective or partial in carrying out the duties.

UNDERSTANDING THE LEGISLATURE AND ITS ROLE

The Legislature is the branch of Government that has power to enact, amend or repeal laws.

Parliament

The legislative branch is also called “Parlia ment”. Parliament is given the responsibility to represent the people of Jamaica, protect the Constitution and promote democratic governance in Jamaica. In other words, Par liament must guard the Constitution and ensure it is not violated.

The Parliament of Jamaica is bicameral, which means it has two levels consisting of the Senate and the House of Representa tives.

The two levels are:

1. The Senate, also known as the upper house of Parliament, is a 21-mem ber body appointed by the Governor General on the recommendations of

the Prime Minister and the Leader of the Opposition. The ruling party is allocated 13 members and the opposition is allocated 8 members.

2. The House of Representatives, also known as the lower house, has 63 seats and members. These persons are also your members of Parliament (MPs) who you vote for as citizens when they contest the general elections. Once you vote for MPs, they serve five-year terms.

How does Parliament work?

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A two-thirds majority of both lower and upper house is needed to make major changes to the Constitution.

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General elections must be held within five years of the forming of a new government.However, the prime minister may ask the governor general to call elections sooner.

WHAT IS THE ROLE OF THE AUDITOR GENERAL?

1. The duties and responsibilities of the Auditor General are stated in the Jamaican Constitution but also the Financial Administration and Audit Act extends these duties. Based on these laws, the Auditor General assess es how effectively the Government of Jamaica is managing its financial management systems and the level of compliance with financial manage ment policies and guidelines.

2. The position is independent from the Executive so no member of the

Government, such as the Prime Minister or other Ministers can try to influence the Auditor General.

3. The Auditor General may be re moved from office only for neglecting duties and responsibilities or for misbehaviour. This may be done by the Governor General acting on the recommendation of a specially established judicial tribunal. This gives the AG freedom to act in the best interest of country without worry of retaliation by dismissal.

UNDERSTANDING

THE JUDICIARY AND ITS ROLE

The Judiciary (also known as the judicial system or court system) is the body that interprets and applies the law. It is comprised of the systems of courts overseen by judges who determine the application of the law in each case. The judiciary also provides a means for the decisions toresolve disagreements about how the law should be applied or interpreted in any instance.

Like the State, the court system is in a hierarchy. The higher the court the greater the power that court has. This is why persons are able to appeal a decision from a lower court in a higher court. The higher court has the power to overturn incorrect decisions from the lower court but not vice versa. The higher court can also agree with a lower court which means the appeal is lost. Appeals go in the order of the courts; parish court appeals to supreme court and the supreme court appeals to the Court of Appeal.

Within Jamaica the Court of Appeal is the final place to appeal. However, as we are a constitutional monarchy, persons can seek permission to appeal to the Privy Council in England. Permission to appeal to the Privy Council is granted by the Court of Appeal and the cost of such an appeal is bared by the applicant. Once the Privy Council decides on the matter it is final and there is no further appeal to be made.

Example, Adidja Palmer aka Vybz Kartel lost the case against him in the Supreme Court for murder and was convicted. His attorneys found fresh evidence which they believe will lead thecourt to a different conclusion. As such, they appealed to the Court of Appeal where they were later granted the permission to appeal to the Privy Council.

What is the Caribbean Court of Justice? Why is it important to know?

The Caribbean Court of Justice (CCJ) is one of the institutions of the Caribbean Community (CARICOM). The two functions of CCJ is to hear matters regarding foreign policy issues that affect the various Caribbean island who sign the Revised Treaty of Chaguaramas. Remember, as a CARICOM member, Jamaica would be able to freely travel without discrimination. So when Shanique Myrie felt violated by Barbados, she took the matter before the CCJ. The CCJ is already the final Court of Appeal for Barbados, Belize, Dominica and Guyana.

Some people believe CCJ should be the highest court for Jamaica to hear appeals for Jamaican citizens. It is argued that it is very expensive to take your case to England to be heard. Therefore, justice is not afforded to the average Jamaican citizen.

Interestingly, others believe that Jamaica should not go to CCJ but create its own final court of appeal here in the island. Jamaicans for Justice has therefore said to the Government that the final court of appeal, whether CCJ or here in the country, should be voted on by the Jamaican people through a referendum.

KEY THINGS TO KNOW

▶ Judge selection and term of office:

▷ Chief Justice of the Supreme Court and President of the Court of Appeal are appointed by the governor-general on the advice of the prime minister.

▷ All other judges of both courts are appointed by the governor-gen eral on the advice of the Judicial Service Commission; judges of both courts serve till age 70.

IMPORTANT POINTS

Jamaica’s Parliamentary system has a fusion of powers because individuals can represent across at least two branches of the State. For example;

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No less than two but no more than four members of the Senate can hold Cabinet positionsin the Executive branch

▶ Some of those who are elected Members of Parliament and sit in the legislative branch also are Cabinet members in the Executive branch. For example, an MP can be a Minister.

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While the Executive and Legislative branches are fused, the judiciary branch is separate and independent of the other two branches.

Offices of The Services Commission

Each branch of Government is support by the Office of the Services Commission. This office ensures that appointments, promotions and selections for training are done based on merit and that the disciplinary and separation processes are properly managed.

Under the Constitution of Jamaica, the Governor-General acting on the advice of the Public Service Commission, the Police Service Commission and the Judicial Service Commission has the power to make appointments to public offices, to exercise disciplinary control, and to remove persons holding or acting in any such office

YOU HAVE THESE FUNDAMENTAL RIGHTS

Right to Life, Liberty and Security

To life - This means that nobody, includ ing the Government, should end or try to end your life. It also means the Government should take appropriate measures to protect life by making laws or, in some circumstanc es, by taking steps to protect you if your life is at risk. Example, in Jamaica it is illegal to kill or threaten to kill someone. This law in

the Offences Against the Person Act helps to protect your right to life.

Liberty and Security - You have a right to your personal freedom. This means you must not be imprisoned or detained without good reason. It focuses on protecting an individual’s freedom from

unreasonable detention, as opposed to protecting one’s personal safety. It is on this basis that we have laws to provide redress in cases of false (wrongful/unlawful) imprisonment. Example, if a police offi cer wrongfully orders someone who is accused of a crime to accompany them to the police station and the person obeys, the officers may be liable for false imprisonment as they did not make clear that he is entitled to refuse to go and therefore he would have been restrained.

By nature, your fundamental rights cannot be taken away. However, certain rights can

security or in response to crime. For example, if you are found guilty of an offence per the Courts, your right to freedom of movement can be restricted if you are imprisoned.

If one is convicted of capital murder, the law allows the court to consider giving that person the death penalty, which acts as an exception to our right to life.

What is Capital Murder?

Capital murder

▶ murder correctional officer, a judicial officer, matter, a juror, a justice of occurrences.

▶ A murder conviction, or the killing of two personson the same occasion, may also attract the death penalty.

The death penalty may not be enforced if

▶ The case does not meet the threshold of being the “worst of the worst” or “rarest of the rare”;

▶ There is a reasonable prospect of rehabilitation of the offender; or

▶ The objectives of the punishment can be achieved by other means other than the imposition of the death penalty.

The 2011 Charter of Fundamental Rights and Freedoms has since caused some constitutional ‘hang ups’ around the imposition of the death penalty. Before 2011, the death penalty may not have been enforced if five years have passed between the date the sentence was handed down and the date the execution is to occur. The Privy Council ruled this length of time to be inhumane. The Charter also overturned the possibility of the death penalty being unconstitutional if the physical conditions or arrangements under which the person is detained pending execution were deemed inhumane.

YOU HAVE THESE FUNDAMENTAL RIGHTS

YOU HAVE A RIGHT TO HUMAN DIGNITY

All humans are born equal and with dignity. This means that we should all be treated with respect, even when the state restricts one of our rights.

THE RIGHT TO A NATIONALITY. This is of paramount importance to realization of other fundmental human rights. Possession of a nationality carries with it the diplomatic protection of country of nationality and is also often a legal or practical requirement the exercise of fundamental rights.

Jamaican nationality is typically obtained by birth in Jamaica or by birth abroad to parents with Jamaican nationality. It

also be granted to persons with an affiliation to the country, or to a permanent resident who has lived in the country for a given peri od through naturalization.

YOU HAVE A RIGHT TO A PASSPORT. As a Jamaican Citizen, you have a right

■ YOU HAVE THE RIGHT TO RESPECT FOR YOUR PRIVATE LIFE AND HOME. This right protects your privacy. Certain information about you should not be made public or accessible to others, such as your image (e.g., photos of you), your body (e.g., blood samples), your sex life, your state of health, your address or your personal or family life. You also have a right to make legal decisions about things that concern you.

■ YOU HAVE THE RIGHT TO USE AND ENJOY YOUR PROPERTY PEACEFULLY. You may lend, rent, sell, give or do whatever you wish with your property within the limits of the law. Note though, if you have committed certain crimes or owe taxes, the Government may sell your property. If your property is required for

Importanttonote

are owners and flesh out the rights not evict their reason and proper tenants’ rights. your permission before entering your property or your anyone who is also applies to agreement is current. spoken or implied let the person have your per mission or a court order before entering your are exceptions, emergency or where there is reasonable suspicion that a crime is premises.

In most instances, your rights end where the rights of others begin.

YOU HAVE THESE FREEDOMS

FREEDOM OF THOUGHT, CONSCIENCE AND

BELIEFS - You are free to choose what you believe in, your values and the principles you live by, insofar as they do not violate the rights of others.

FREEDOM OF OPINION - You are free to think whatever you like. You are free to agree with the opinions of others or to hold different opinions.

▶ FREEDOM OF EXPRESSION -

Freedom of expression is very broad. includes your right to express your ideas and opinions openly and however you choose via different media forms. For instance, you can express yourself via social media, in the arts, in writing, in speech, or via peaceful protest.

right allows you to criticize a religion or a political view. It can also extend to how you present your you are able the show that your presentation is related to the expression particular idea. For example, if you are Rastafarian and you wear dreadlocks to express your religious adherence, then it would breach your freedom of expression

were forced to cut your locks to re tain or gain employment or enter an edu cational institution. You also should bear in that others have the right to express their ideas and opinions and you cannot exercise your right to suppress theirs.

ALERT: Though not enforced, there are still laws that may limit religious beliefs such as the 1898 Obeah Act. History shows that the laws surrounding obeah was used by the then British government to oppress black poor people. Obeah was first made illegal in 1760 and used against blacks following the Tacky Rebellion. Up to the 1950s, the law was routinely used to prosecute persons, such as those belonging to the maroon community and those who spoke the words of Marcus Garvey.

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FREEDOM OF RELIGION -

You have the right to the religious belief of your choice, to practise your religion and to express your beliefs without fear of reprisal. You also have the right to have no religious belief and to practise no religion. The Government cannot force people to have or practise a religion or favour one religion over another nor discriminate against you due to your religious belief.

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FREEDOM OF MOVEMENT -

Jamaican citizens and perma nent residents have the right to live or seek work anywhere in Jamaica. Jamaican citizens have the right to enter, remain in, and leave Jamaica. The Government and/or no employer in Jamaica can’t discriminate based on what community or parish someone used to live or currently lives in.

The Charter protects your rights and freedoms no matter who you are. No one may use some of your personal character istics as a reason to prevent you from fully exercising your rights and freedoms. The right to equality protects you from discrimination based on the following personal characteristics, which are called prohibited grounds of discrimination.

▶ Race or colour - Race is a way of classi fying people using physical or cultural criteria, without any scientific basis.

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Being Male or Female

Political or religious opinions - These are strong opinions or beliefs that you identify with. For example, you may support a specific political party, take part in a demonstration or belong to a social activist group.

▶ Social class - This includes the kind of work you do, your income (e.g., receiving social welfare), your level of education, or being homeless. FREEDOMS

You have a right to equality and non-discrimination

▶ Place of origin – Place can refer to persons born outside of Jamaica or within Jamaica itself. For example, a particular community in a particular parish. It also includes your cultural characteristics. For example, someone who is living here but their place of origin is China with certain cultural practices.

YOU ALSO HAVE A RESPONSIBILITY TO TREAT OTHERS EQUALLY AND WITH RESPECT

You may not communicate discriminatory messages using public notices, symbols orsigns. Also, you cannot ask someone else to do it for you.

REMEMBER, THE RIGHT TO NON-DISCRIMINATION EXTENDS IN THE PLACE OF WORK OR WHEN ACCESSING SERVICES

■ No one may include a discriminatory clause in any contract or agreement. A discrim inatory clause in a contract has no legal value. Even if you signed to this contract the Court would not enforce the illegal clause. For example, a clause in your agreement that says you will be terminated if you vote for a particular political party. This would breach your freedom of association.

■ No one may use a prohibited ground of discrimination to stop you from being in a public place or using public transportation. No one may stop you from getting goods or services that are available in a public place.

■ A public place includes businesses, hotels, restaurants, theatres, parks, schools, or churches and government offices.

▶ No one may use a prohibited ground of discrimination to treat you differently in these situations:

▷ Pre-hiring and hiring

▷ your working conditions (probationary period, salary, etc.) deciding your job category promotion or demotion benefits

▶ An employer may not ask questions about some of your personal characteristics in a job application or during a job interview. You do not have to answer these questions, except in these situations:

▷ the question relates to a requirement for the job

▷ the employer is a nonprofit organization, or an organization devoted to the well-being of a marginalized or vulnerable group, and the question relates to the organization’s mission.

▷ the question is necessary for an equal access to employment programme that favours hiring and promoting people who are often discriminated against (people living with HIV, women, people with disabilities, etc.). But these people must have the same skills as other candidates.

THERE IS NO DISCRIMINATION IN THE FOLLOWING SITUATIONS EVEN IF SOMEONE TREATS YOU DIFFERENTLY BASED ON SOME OF YOUR PERSONAL CHARACTERISTICS:

▶ A job requires specific skills or qualifications. Example, an employer may require that you know how to use the computer or know English if it is required for the job.

▶ The charitable, philanthropic, religious, political or educational mission of an institution may justify different treatment. It must be a non-profit institution or one devoted exclusively to the well-being of a vulnerable or minority group. Example, a women’s organization working with sexual abuse survivors may choose to hire only women to work directly with women in difficulty.

▶ YOU HAVE THE RIGHT TO FREEDOM

The Constitution protects the freedom protests and other civil disobedience

Exercising this freedom is subject to limitations safety, public order, public morality, and may deny public gatherings during COVID-19 Government can also regulate how these Public Order Act, citizens are required to Constabulary Force.

▶ YOU HAVE THE RIGHT TO ASSOCIATION – You have the right to freedom of association with political parties, trade unions and any other association or voluntary group. People are free to discuss ideas and organise protests without fear of reprisal. This is a crucial part of keeping our lives democratic and fair. Like other rights, this right also has limitations to ensure public safety and law and order. For example, Jamaica has anti-gang legislation that puts restrictions on associations with gang members and legal consequences.

▶ YOU HAVE THE RIGHT TO VOTE. But you must meet the legal requirements. In Jamaica, youmust be 18 or older, be a Jamaican citizen and have lived in Jamaica for at least twelve months.

▶ YOU HAVE A RIGHT TO BE AN ELECTOR TO JAMAICA’S HOUSE OF REPRESENTATIVES. But you must be 21 years and older or a Commonwealth citizen (other than a citizen of Jamaica) who is resident in Jamaica at the date of registration and who has been so resident for at least twelve months immediately preceding that date.

▶ YOU HAVE A RIGHT TO MEANINGFUL REPRESENTATION. Our elected Governments cannot hold power for an unlimited amount of time. The Charter requires Governments to call an election at least once every five years. An election could be delayed, however, during a national emergency, like a war or maybe during a public health crisis like COVID-19. In this case, two-thirds of the members of the House of Representatives (Parliament) must agree to delay the election.

The Charter makes it clear that elected representatives of legislature (our Mem bers of Parliament) must sit at least once a year. This holds Parliament and all other legislatures responsible for their actions.

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The right to a fair hearing by an independent and impartial court.

▷ This right lets you defend yourself, present proof and give arguments to support your case.

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The right to full and equal treatment. without any distinction

That means your race, colour, place of or igin, whether male or female, religion or political opinions do not affect your right to equality. We are all equal before the law.

▶ The right to a public hearing.

What happens in court is public. Anyone can attend, including you. If you are the accused in a criminal matter, you must attend.

▷ The court must remain neutral and not favour one side over another.

▷ The court and the persons (jury) making the decision must not have any personal or professional ties with you or with anyone else involved in the case.

YOU HAVE THESE RIGHTS WHEN A COURT MUST DECIDE WHETHER YOU ARE GUILTY OF A CRIME OR OFFENSE, OR WHAT YOUR LEGAL RIGHTS OR RESPONSIBILITIES ARE:

The court may decide not to hold a public hearing for reasons of morality or public order. Hearings that are not public are called in camera hearings. Sensitive cases where the information can identify parties involved cannot be disclosed. Exam ple, in cases of sexual offences, involving children, those matters are dealt with in camera.

No one may do the following:

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No one may take away your freedom or prevent you from exercising your rights, except in some situations allowed by law.

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thorities and prevented from leaving without being arrested.

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No one may subject you to an unreasonable and illegal search. Also, no one may subject you to an unrea sonable and illegal seizure of your property. A seizure is when the author ities take control of a place so they can remove property. The police may not stop you in the street and decide to search your clothes or your handbag without good reason.

If arrested or detained:

▶ If you are arrested or detained, you must be treated with dignity and respect. Authorities may not use excessive or unnecessary force when arresting or detaining you.

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Detained is when you are kept in a detention centre (e.g., lockup). Detention can also be preventive. This is when a person is stopped by the au

Preventive detention gives authorities a chance to investigate and decide whether the person should be arrest ed. Arrest is when charges are laid against the person.

▶ People placed in a detention centre have the right to treatment that is appropriate to their age, their gender, their mental condition and their phys ical condition.

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People waiting for their trials to end may be detained in prison or another detention centre, but they have the right to be separated from people who were already found guilty and are serving their sentences.

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All people have the right to know why they are being detained or arrested. The authorities must tell them the reason as soon as possible and in a language they understand.

Anyone accused of a crime has the right to know the details of the crime. The authorities must give the person this information as soon as possible.

People who are arrested or de tained have these rights:

■ To immediately get help from a lawyer

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To immediately tell their next of kin or spouse what has happened. The authorities must inform them of these rights as soon as possible.

■ If detained, you must be consid ered for bail within 24 hours or be brought before the court for bail to be considered.

■ Anyone who is arrested or detained must be brought before the appropri ate court as soon as possible or be set free.

Right to Bail

If you are arrested, you have the right to be considered for bail where:

You have been charged with an offence for longer than 24 hours

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You are charged with an offence not punishable with imprisonment

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You are charged with a major crime such as murder or treason, however this is subject to the discretion of a Parish Court Judge or Supreme Court Judge.

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Please note that authorities may limit this right, but only for valid reasons such as:

▶ The authorities believe that there are important facts to prove:

i. that you will not appear in court,

ii. that you will commit another offence while on bail iii. that you may interfere with witnesses etc.

iv. You were previously granted bail in criminal proceedings, and you failed to appear in court.

The deposit is the amount of money that you give to assure the court you will appear for your case at the appointed time. If you don’t appear, you will lose the money. A warrant will also be put out for your arrest, and you are likely to remain in detention for the remainder of your trial.

A surety is the amount of money that another person gives (e.g., a relative or friend) on yourbehalf.

People who are deprived of their freedom have the right to ask the court if their detention is legal. The authorities must make an order to release you from custody if the court believes the detention is illegal.

A person accused of a crime has the following rights:

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The right to a trial within a reasonable time.

A person accused of a crime is innocent until proven guilty. The state must prove that a person is guilty be yond a reasonable doubt; otherwise, the person must be acquitted (found not guilty).

▶ If you have been detained or arrested, you have the right to a lawyer. Every person who is detained or remanded at a police station, even if you have been detained without being charged, should be allowed to contact a lawyer.

▶ If you do not have a lawyer, ask the po lice to contact a Duty Counsel, who is a private lawyer provided through the Legal Aid Clinic.

▶ Once you ask the police to contact

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your lawyer or Duty Counsel, they should wait until that lawyer arrives before they begin to question you, take your fingerprints or your DNA.

A person who is detained or arrested has a right to remain silent when be ing questioned even in the presence of their lawyer. This silence cannot prejudice your case in any way should it go to trial.

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A person accused of a crime has the right to remain silent during the trial. The person should not be forced to testify.

Anyone accused of a crime has the right to a full and complete defence.

▶ Everyone has the right to cross-exam ine any witnesses testifying for the opposing party during a case. People have the right to know all the material gathered against them before the trial so they can defend themselves.

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People accused of crimes have the right to understand what is said during their court hearings. They have the right to an interpreter free of charge if they do not understand the language spoken in court or if they are deaf or have hearing loss. The right to an interpreter free of charge does not apply to civil cases (divorce, problems with a house you bought or sold, contracts, legal responsibility, etc.). In these situations, people may be assisted by an interpreter but at their own cost.

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People may be found guilty of a crime only if what they did was a crime at the time they did it. There fore, someone may not be found guilty if what he or she did became a crime only after it was done.

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A person cannot be tried more than once for the same crime. This means that a person may not be accused of the same crime a second time after already being found guilty or not guilty of that crime.

Note the following for the same crime being charged twice

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Appealing a decision (guilty or not guilty) is not the same thing as being accused a second time. Also, a judge may order that the trial start over from the beginning (retrial).

A person can however be accused a second time for a different crime. People may also be taken before a disciplinary committee or be sued in a civil case (e.g., when a victim wants to be compen sated).

▶ Sometimes a person can face two kinds of cases for the same is sue. For example, a company is criminally charged for the damage it has caused to the health of persons in a certain community due to its operations. It loses the case and is then sued by the same people for financial compensation for the damage.

▶ Sometimes the sentence for a crime changes. It might change after a person commits the crime but before the court decides on the sentence. In this situation, the person has the right to the lighter sentence.

▶ Sometimes people are forced to testify in a court case. What they say in that case may not be used to incriminate them in another case.

IMPORTANT THINGS TO NOTE ABOUT THE CHARTER:

▶ You should not be forced to testify in your own trials. Your testimonies in one case may not be used against you in another criminal case. But they may be used against them in a civil case (e.g., the victim wants to be compensated). A person who lies while testifying may be accused of perjury.

▶ People who change their stories from one testimony to another may be accused of giving contradictory evidence. Comment Perjury and giving contradictory evidence are crimes.

▶ A spouse cannot testify against their spouse unless they are the victim of the alleged actions in the matter.

Right to Appeal

▶ Any person convicted of a criminal offence has the right to appeal their conviction or their sentence. An appeal is a defendants request to have their ruling reviewed by a higher court in which they were convicted or sentenced.

PART SIX: SOCIAL, CULTURAL AND ECONOMIC RIGHTS

primary levels. There may be admis sion fees and fees for schoolbooks, photocopies, etc.

RIGHTS FOR ALL CITIZENS OF JAMAICA

▶ People who are part of the protected groups based on race, colour, place

public private organization keeps on you (e.g., medi cal files) public information.

▶ You have the right to live in a healthful environment that pre serves biodiversity. A healthful envi ronment is one that is not harmful to your health. Biodiversity means all living things and their genetic make-up.

▶ Married or civil union spouses are equal and the law recognizes marriage between a man and woman.

THE CONSTITUTION OF JAMAICA DOES NOT GUARANTEE CITIZENS CERTAIN FUNDAMENTAL SOCIAL AND ECONOMIC RIGHTS. ARGUABLY, THIS IS BECAUSE OF THE IMPLICATIONS FOR PUBLIC SPENDING.

However, by international standards and provided for in some statutory laws and policies, you do have some rights, though not guaranteed. These rights are a part of the International Covenant on Economic, Social, and Cultural Rights, which Jamaica ratified in 1976.

1. You have the right to social and financial assistance provided by law when needed. This assistance must ensure that you have an ac ceptable standard of living through social and financial assistance. Your children and family also benefit from this right. For example, the Nation al Insurance Scheme (NIS) and the Programme of Advancement through Health and Education (PATH).

2. You have the right to fair and reasonable work conditions. Your work conditions must comply with the law and be appropriate to your health, safety, and physical well-

Application for redress to the Supreme Court

▶ If you believe that any of your constitutional rights have been violated, you may apply to the Supreme Court for redress.

▶ The Supreme Court will decide about your case or refer your case to lower courts if they believe other ex isting law sufficiently responds to your complaint.

▶ Any person aggrieved or not happy by any determination of the Supreme Court may appeal there from to the Court of Appeal.

▶ You can also seek the support of a lawyer or a public or civic organization like Jamaicans for Justice to initiate an application to the Supreme Court on your behalf.

JAMAICANS FOR JUSTICE (JFJ) PROVIDES DIRECT LEGAL SUPPORT IN HUMANRIGHTS MATTERS.

This involves legal assistance to vic tims of human rights violations and their families, pro bono legal advice to primarily low-income and marginalized persons, and strategic litigation of human rights, social justice and state accountability matters. JFJ provides active representation in multiple courts across Jamaica in civil and criminal matters and before international tribunals such as the Inter-American Commission on Human Rights (IACHR).

JFJ’s legal team works primarily on cases involving public authorities, especially the security forces. We provide legal support in response to: police killings unlawful detentions and abuse  discrimination of any kind denials of access to justice  other forms of injustice

Should you or someone you know require legal advise to make contact complaints@jamaicansforjustice.org Telephone: 876-322-8205 Kingston 8

FUNDAMENTAL RIGHTS AND FREE-

DOMS ARE SUBJECT TO LIMITATIONS AND ARE NOT ABSOLUTE

The rights that are guaranteed can be infringed if the State can show that the infringement is “demonstrably justi fied in a free and democratic society. While the death penalty may not be enforced due to principles of ‘rarest of the rare and worst of the worst’, among other provisions, the fact that it remains on the books undermines the very basic right to life. The death penalty is a cruel, inhuman, and degrading punish ment violating the right to life. The com plete abolition of the death would contrib ute significantly to the enhancement of human dignity.

DEATH PENALTY REMAINS ON THE BOOKS

determination is currently being made. Courts have provided limited guidelines. The Judicial Committee of the Privy Council, for example, has stated that “where there is a parallel remedy, constitutional relief should not be sought unless the circumstances of which complaint is made include some feature which makes it appropriate to take that

TYRANNY OF THE MAJORITY

While it is important that some fundamen tal legislative changes must be put before all citizens such as retaining the monarchy; fundamental rights and freedoms should not be open to the possibility for tyranny by the majority. For example, based on our socio-cultural norms, the public may not vote in favour of some minority groups being protected by the Constitution.

GUARANTEED REDRESS IS NEEDED

Jamaica’s Charter specifically empow ers the Supreme Court to decline to grant constitutional relief if it is satisfied that there are adequate means of legal redress available outside the Constitution. The availability of “adequate means for redress” outside the Charter for an alleged infringe ment may foreclose the possibility that an applicant can obtain relief under the Constitution. Though the mere existence of an alternative remedy will not preclude constitutional relief, what is troubling is that as adequacy is not defined in the Charter, it is unclear under what criteria the

NOT ALL MINORITY GROUPS ARE CONSTITUTIONALLY PROTECTED

The Charter omits protection on a significant number of grounds recog nized by international standards including