# Human/Fundamental Rights

- Rights that every human being is entitled to.
- They are interconnected/interrelated, interdependent and indivisible.

States have a responsibility to respect, protect and fulfil human rights

- Respect: States have a responsibility to aggravate the rights of an individual
- Protect: States should protect its people from human rights abuse
- Fulfil: Take active steps/positive action to ensure that people enjoy their rights

In 1948, the world experienced the first universal agreement on a set of rights (the Universal Declaration of Human Rights). The rights were further development and articulate in different treaties and instruments:

- International covenant on civil and political rights (ICCPR).
- International covenant on economic and social cultural rights (ICESCR).
- American convention of human rights (regional instrument)
- Constitution(Domestic Level)

Human rights are protected at all levels.

Rights exist in generations because of how they were developed. Because all the rights did not come about at the same time. Generations

1. Civil & Political Rights (ICCPR)- all countries have these

- Right to Life
- Freedom of movement,
- Freedom from cruel and unusual punishments

- Right to Liberty,
- Privacy,

- Right to security,
- Freedom from arbitrary arrest
1. Economic, Social & Cultural Rights
    
    
    - Education
    - Food Security
    
    - Health
    - Reasonable standard of Living
    
    - Work
2. Aspiration 

- Healthy Environment

- Resources

- Minorities

### Economic, Social & Cultural Rights

- There are only 3 countries (Jamaica, Guyana, Belize) that have Economic, Social & Cultural Rights

Jamaica

- Right to education up to primary
- Right to a passport

Guyana

- More advance Education, health etc.

Belize

- Right to Work

Economic, Social & Cultural Rights are resource dependent

### Aspirational Rights

- Only Jamaica has aspirational rights, the right to an healthy environment.
- Rights are found in a chapter of our constitution called the Bill of Rights or in the case of Jamaica alone, Charter of Rights.

### Notes

![Screenshot 2023-10-06 122118.png](https://prod-files-secure.s3.us-west-2.amazonaws.com/73e57e9a-d800-4db1-917c-d8dc5b142e51/dcbb27ed-48f2-4d46-859c-1ad167d6d40e/Screenshot_2023-10-06_122118.png)

- Jamaica put a definition of marriage in their constitution:
    - Marriage must include 2 people of opposite sex
- The rights are not absolute, which means, restrictions are placed on the rights to ensure that the rights and freedom of others are protected. You can’t enjoy your rights to the determent of others.
    - We have a trespass though all of us have the right to freedom of movement. It is to protect the other person right to property and privacy.
- Different countries use different formulation (wording) to restrict the right. In Jamaica, the rights are restricted where it is demonstrably justifiable in a free and democratic society. In other countries, the rights are restricted in the interest of public health, public order, public safety and public morality. In Jamaica the protection of right is vertical and horizontal. In other countries, it is only vertical.

- Citizens have a right of redress in supreme court where there is a breech or threat of breech of their fundamental rights

## Right to Life

ICCPR provides that every person has the inherent right to life (born with it) and the right to not be deprived of his life.

ACHR states that every person has the life generally from the moment of conception.

The constitution protect the right to life but allow for exceptions using different wording. In Jamaica, it is where demonstrably justifiable in a free and democratic society. In Trinidad, it is right cannot be taken except after due process. Barbados says, right cannot be taken except in self defence, in execution of the sentence of the court, in preventing escape from lawful custody, in effecting a lawful arrest, in quelling a riot, in a lawful act of war, or to prevent the commission of a crime.

## Death Penalty

International Law does not prohibit the death penalty however, it put restrictions on how the penalty is applied.

1. The penalty can only be given for the most serious crimes (treason or murder).
2. Penalty can only be posed by a competent court (Court that has the authority to give that)
3. The accused person must have the right to seek pardon or commutation of sentence
4. Penalty cannot be imposed for political offences
5. If the penalty is abolished it should not be reinstated
6. Penalty cannot be imposed on minors (under 18), pregnant women, insane persons and *persons over age 70 only for ACHR.*

Offences against the person Act, deals specifically with the death penalty:

1. The death penalty is one of the penalties for capital murder, the other is life imprisonment. (20 years for capital murder, 15 years for non-capital murder and no less than 10 for special cases. Special case: Pleads a defence. 
2. Capital murder is committed in the following circumstance OAPA
    1. The killing from any person from a listed category
        1. Police officer
        2. Correctional Officer
        3. Any member of the security forces (in the line of duty or because of his office)
        4. Judicial Officer
        5. Justice of the Peace (JP)
        6. Juror
        7. Witness/party to a case (whether pending or concluded)
    2. Murder in furtherance or in course of robbery, housebreaking, terrorism, arson, burglary or any sexual offence (in the course).
    3. Murder for hire. 
    4. 2 or more counts of non-capital murder.
    
    Exceptions
    
    - Juveniles
    - Pregnant Women
    - Insane Persons
    - All women are exempt by practice (not law)

The death penalty has not been used in Jamaica since 1988, because of certain decisions of the Privy Counsel.

**Pratt & Morgan v Attorney General  (AG) of Jamaica (1993)  [Jamaica]**

- The Privy Counsel established a presumption that if the time between sentencing and execution extended beyond 5 years, that delay is a breech of the accused person constitutional right to freedom of cruel and inhuman treatment. In response to that, Jamaica amended its constitution in 2011 to state that there is no breech of rights on account of any delay between sentencing and execution or because of any condition under which the defendant is held before execution.

**Neville Lewis v AG of Jamaica (2000) [Jamaica]**

- The Privy Counsel made the 5 year presumption a rule. The court said further, the accused person must be allowed to exhausted channels of appeal and the state must not execute until the appeals are completed.

**Lambert Watson v Queen AG of Jamaica (2004) [Jamaica]**

- The court said that the mandatory death penalty was unconstitutional because it breeched the doctrine of separation of powers:
    - They said it was parliament and not the court determining sentence
    - It took away the discretion of the judge

**Evon Smith v Queen (2005/6) [Jamaica]**

- The Privy Counsel said that the provisions of the OAPA must be strictly interpreted. A person cannot be found guilty of capital murder unless his act falls within one of the capital murder circumstances.
- Evon was involved in a relationship with a girl. Girl didn’t want the relationship no more. Evon put a ladder through the window and chopped her up in her sleep.

**Trimmingham v Queen (2009) [St. Vincent]**

- The Privy Counsel established a two tired approach to be followed before the death penalty can be imposed in any case:
    - The penalty can only be imposed in cases which on their particular facts, are most extreme and exceptional or worst of the worst or rarest of the rare. In making this determination, the judge must not compare the case to civilised behaviour rather it must be compared to cases that have come before the court
    - The judge must form the view that there is no reasonable prospect of reform of the offender and that the objective of punishment can only be served by the ultimate sentence of death. The character of the individual and his circumstances should only be considered if they work in his favour.
- This was a goat farmer in St. Vincent. People wanted rob him and he said he don’t have any money but they could take the goat. The robbers don’t want the goat so they killed him. The bash his head, slit is throat, cut the head from the body, remove his genitals, open his torso.

**Lockhart v Queen (2011) [Trinidad]**

- The Privy Counsel said it must get the report of a psychiatrist before he gets the death penalty.

**AG of Barbados v Joseph & Boyce (2006)**

- The CCJ upheld the 5 years rule on the basis that the accused men have a ligitiment expectation that they will not be killed after 5 years on death row.