No inalienable rights

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain inalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."

The above quotation from the Declaration of Independence of the United States of America (adopted in 1776) recognises that inherent in the existence of humanity are certain rights which cannot validly be infringed or taken away by the State or any individual. The Jamaican Constitution - including the Charter of Rights now being considered in the Senate - recognises no such rights. The Jamaican Constitution - including the new Charter of Rights - allows the Jamaican State, under certain circumstances, to limit or take away each and every right it claims Jamaicans have.

What a Constitution does is define the relationship between a state and its citizens; it is intended to limit the power of government to avoid it becoming dictatorial or monarchical (the American colonies had a bad experience with monarchy; we are still in it - every Jamaican minister is a monarch in his ministry). For this reason, consti-tutions are best not crafted by politicians, who are in the business of seeking and holding on to power. That would be a profound conflict of interest; it is asking a lot of power-seekers to be balanced enough to award to the citizenry rights to hold the power-seekers accountable. We have that problem here in Jamaica.

Take the right to life. If it really is an inalienable right, not even the State has the right to take it away. Judicial killings are a breach of the inalienable right to life. Yet Jamaica has retained the death penalty in this new bill of rights. More than two-thirds of the countries in the world have abolished the death penalty - in law or practice - but we are determined to be left behind. Last year, one more country - Gabon - abolished the death penalty, while Mongolia established an official moratorium on executions. Only 23 countries carried out executions in 2010. One of them is the United States of America, which speaks of the inalienable right to life; as you will notice, the above words are from the US Declaration of Independence, not the US Constitution. I cannot find anywhere in the US Constitution or the US Bill of Rights which guarantees Americans the right to life, no matter what the US Declaration of Independence says. We are not the only ones to be inconsistent.

Right of personal security

Our Charter of Rights lumps together the right to "life, liberty and security of the person" in the same clause; in other words, the right to life is not supreme or special. And, without even a comma, the clause goes on to recognise "the right not to be deprived thereof, except in the execution of a sentence of a court in respect of a criminal offence of which the person has been convicted". I can understand losing my right to liberty by being sentenced to imprisonment, but how can a court take away my right to "security of the person"? Even in prison I have the right to security of my person. No court can take away my right of personal security.

The use of excessive force by our security forces (agents of the state) is of global notoriety, both in conducting extrajudicial killings (depriving citizens of their right to life) as well as kicking down people's doors, and in gun-butting people (depriving citizens of their right to personal security). These same rights are also guaranteed under Chapter III of our current (Independence) Constitution, but that has not prevented the State, through its agents, from taking them away. The director of public prosecutions - an agent of the State and creature of the Constitution - has been singularly unsuccessful in enforcing the right to life and the right to personal security of thousands of Jamaicans at the very hands of the State. You will pardon me if I am a bit cynical about the new Charter of Rights.

Not only does our new Charter of Rights not guarantee an inalienable right to life, but it goes out of its way to enable the State to take life. I ask myself why, with so many other laws in need of passage and amendment, is this Charter of Rights brought out of oblivion and dusted off and rushed through Parliament? Pratt and Morgan, of course! The real purpose of the new Charter of Rights is to establish that keeping a person on death row for longer than five years is NOT cruel, inhuman and degrading punishment.

Disgraceful!

Peter Espeut is a sociologist and a Roman Catholic deacon.

Know your rights

The Charter of Rights, which was passed in the House of Representatives last week, has been hailed as fundamental to the freedom of every person in Jamaica. Read it for yourself on The Gleaner's website at http://jamaica-gleaner.com/pages/bill-of-rights.

If you have any questions or concerns, shoot us an email at letters@gleanerjm.com, and we'll get our legal experts to break it down for you.