THE PROTECTION OF FUNDAMENTAL RIGHTS

FD13A

WHAT ARE HUMAN RIGHTS RIGHTS?

These are rights that all individuals have by virtue

of being human.

FUNDAMENTAL RIGHTS
Fundamental rights are:

A. Inalienable - They should not be taken away

/infringed upon, except in specific situations & according to due process. B. Interrelated, interdependent & indivisible-the improvement of one advances the others & the deprivation of one adversely affects the others

THE UNIVERSALITY vs. RELATIVITY OF HUMAN RIGHTS: THE DEBATE.

There is a substantial debate in the literature

about whether human rights are universal. Some protagonists take the view that human rights are held by everyone & that the state cannot take these rights away. Others argue that human rights may vary from place to place. Another point of debate is whether human rights are rights that we have only against the govt.

The 3 GENERATIONS OF HUMAN RIGHTS

First generation= civil & political rights (eg. The

right to life, liberty, security, freedom of movement etc.) Second generation= economic, social & cultural rights (eg. the right to education, health, work, reasonable living standards, food security etc.). Collective/ group rights Third generation = solidarity rights (eg. The rights of ethnic minorities, children, women, indigenous groups, the right to self determination, the right to a healthy environment etc.)

THE PROTECTION OF FUNDAMENTAL RIGHTS.

Fundamental rights are protected at:

The international level through international sources eg. ICCPR & ICESCR and , b. The domestic level through our respective Constitutions.
a.

The International Covenant on Civil and Political Rights (ICCPR) & The International Covenant on Economic, Social and Cultural Rights (ICESCR)
The process of creating a treaty to speak to

important human rights started in 1950. Influence of the Cold War The US & its Western allies maintained that the only legally binding human rights were civil & political rights ie. Those rights set out in Articles 2-21 of the UDHR. The USSR & its allies argued that civil & political rights were less important than economic, social & cultural rights ( right to food vs. right to vote)

ICCPR
The rights of the ICCPR tend to be enforceable in

court. The terms of the ICCPR are supplemented by 2 protocols: (A) The first optional protocol to the ICCPR. This Protocol allows individuals from countries that are parties to it to take cases to the United Nations Human Rights Committee. (B) The Second Optional Protocol to the ICCPR is concerned exclusively with the death penalty. If a country ratifies the Second Optional Protocol to the ICCPR, that country promises to abolish the death penalty except in times of war.

ICCPR
Jamaica withdrew from the First Optional Protocol to

the ICCPR on January 1, 1998 because of problems concerning the implementation of the death penalty in Jamaica. No Commonwealth Caribbean country is a party to the Second Optional Protocol to the ICCPR.

ECONOMIC & SOCIAL RIGHTS

ICESCR Article 2 (1): Each State Party to the

present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.

ICESCR
THE RIGHT TO EDUCATION Article 13 of the Convention provides for the right to education to achieve full development of the human personality, strengthen respect for the human rights & foster tolerance for others. Secondary education should be available & accessible to all by every appropriate means & gradually progress to free education. Tertiary education must be equally accessible to all on the basis of capacity & gradually progress to free education.

ICESCR
THE RIGHT TO HEALTH Article 12 of the Convention provides for a right to the enjoyment of the highest attainable standard of physical & mental health including reduction of still births & infant mortality rates; improvement of environmental& industrial hygiene; prevention, control & treatment of all kinds of diseases & creation of conditions which assure to all, medical services& attention in the event of sickness.

ICESCR
THE RIGHT TO WORK Articles 6-8 make provisions for the right to work which include: -opportunities to make a living by work which a person freely chooses & accepts, -education& training to assist in this process, -Just & favourable conditions of work -Fair wages -Equal pay for equal work regardless of sex -Safe &healthy working conditions -Equal opportunity for promotion -Rest and leisure -Reasonable limits on work hours -Holidays with pay, and -Right to form & join trade unions

ECONOMIC & SOCIAL RIGHTS contd.

In relation to the ICESCR, students should know:

1.The provisions of the Convention, 2. The efforts that states have undertaken to fulfill their obligations under the Convention, 3. Are these rights justifiable?
All countries in the Caribbean are party to the ICESCR.

THE PROTECTION OF FUNDAMENTAL RIGHTS: THE JAMAICAN CONTEXT.

Section 13 of the Charter of Rights indicates

that: a. The State has an obligation to promote universal respect for & observance of human rights & freedoms, b. All persons in Jamaica are entitled to preserve for themselves & future generations, the fundamental rights & freedoms, c. All persons are under a responsibility to respect & uphold the fundamental rights of others,

The Jamaican context contd.

Parliament shall pass no law & no organ of the state

shall take away any action which abrogates, abridges/ infringes on the fundamental rights & freedoms except: 1. Laws seeking to restrict marriages to one man & one woman, 2. Measures reasonably justifiable for dealing with situations that exist during a period of public emergency/ public disaster, 3. Preservation of laws relating to sexual offences, abortion & obscene publications 4. Actions demonstrably justifiable in a free & democratic society.

NEW FUNDAMENTAL RIGHTS IN JAMAICA.

Right to a passport

Right of observance of political doctrines

Right to seek, receive, distribute & disseminate

information, opinions& ideas through the media Right of children to education up to the primary level & to the protect the rights of minors Right to a healthy & productive environment

THE CHARTER OF RIGHTS

THE RIGHT TO EDUCATION Provides for free education up to the primary level. The Child Care & Protection Act (2003) makes it the responsibility of parents/ Guardians to ensure that children attend school. There is a Ministry Policy that makes school attendance compulsory. GSAT exams make secondary education accessible to all. At the secondary level, there is a book rental scheme, free tuition, PATH programme. Tertiary-on a basis of capacity, it is accessible but not free. The SLB is available .

THE CHARTER OF RIGHTS contd.

THE RIGHT TO HEALTH -Legislation-Mental Health Act, Public Health Act -Health care is free - JADEP - NHF - -Improvements in garbage collection - -Requirements that children should be fully immunised - Amenities are improved in most communities The Charter of Rights now provides for a safer & more healthy environment.

CRITICISMS
Deplorable conditions at UWI hospital

published: Thursday | October 6, 2005 THE EDITOR, Sir: I AM a doctor working in the Accident & Emergency Unit/ Casualty Department of the University Hospital, where the deplorable working conditions are becoming unbearable for the unit's personnel. 'Not good enough'- MAJ says doctors work under deplorable conditions at KPH. Published: Saturday | November 14, 2009 The Medical Association of Jamaica (MAJ) President, Dr Winston De La Haye, has shown disgust over the poor working conditions doctors have to endure at the Kingston Public Hospital (KPH). He argued that the patients were also displeased with the service they received. The long waiting time, the limited staff, and the belief that the abolition of user fees was contributing to the high patient-to-doctor ratio were some of the sentiments expressed by several patients at the facility.

THE CHARTER OF RIGHTS contd.

THE RIGHT TO WORK Legislation-Maternity Leave Act, Termination & Redundancy Payment Act. -Generally there is a 40 hour work week. -There is a payment rate for overtime work -Legislation to ensure safe working conditions -There is a set minimum wage. Jamaicas minimum wage is J$4,500 per week for all workers except private security guards, whose minimum wage is J$6,655 per week.[NB. Employer violations]

DISCUSSION