THE EFFECTIVE ENFORCEMENT OF CONSTITUTIONAL RIGHTS IN THE COMMONWEALTH CARIBBEAN
I am deeply grateful to the organisers of this Conference, the Guyana Bar Association, for giving me the opportunity to address this session of the Conference on the topic “The Effective Enforcement of Fundamental Rights in the Commonwealth Caribbean.”
This Conference has as its theme: “Redefining Our Objectives in Contemporary Society.” This is most appropriate since the world has been transformed into a globalised village which has brought new challenges to the legal profession.
Law and lawyers are instruments of social order. Without law, the evolution of humankind to its present stage of development would not have been possible. Through the law, society is preserved and people are able to live in peace, from generation to generation.
The Universal Declaration of Human Rights, formulated, with care and deliberation, by the United Nations, sets out the common standards that should apply to human society, irrespective of race, colour, sex, language, birth and other status.
In effect, it sets forth the attributes of a democratic system, and with respect to the functions of the rule of law, states:
“It is essential, if man is not to be compelled to have recourse, as a last resort to rebellion against tyranny and oppression, that human rights should be protected by the Rule of Law.”
The provisions and ideals of the Charter of the United Nations and of the Universal Declaration of Human Rights of 1948 have now been reflected in many international conventions, national constitutions and laws which have been relied upon by judicial authorities.
The Constitutions of the countries of the Commonwealth Caribbean embody the ideals and values contained in the Charter of the United Nations and the Universal Declaration of Human Rights.
However, the mere inclusion of these fundamental rights in the Constitutions and the provision therein for an avenue of redress by individuals, are not sufficient to guarantee to individuals the enjoyment of these rights.
The Government must take steps to ensure that these fundamental and human rights are enjoyed. It must, among other things, reform the existing laws so that the necessary institutions and legal infrastructure can be put in place to make the enjoyment of human and fundamental rights a reality.
For example, in Trinidad and Tobago, although the right to equality of treatment is expressly stated as a fundamental right in our Constitution, and the Constitution provides a remedy for its violation by the State or any public authority, it was necessary to make the enjoyment of the right a reality. As Attorney General, I initiated the enactment of laws to set up an Equal Opportunities Commission and an Equal Opportunities Tribunal.
The Equal Opportunities Commission is given the power to investigate complaints of unequal treatment under the Equal Opportunity Act, and the power to mediate in an effort to resolve the differences between the aggrieved person and the wrongdoer. If the matter is not resolved, the Commission has the power to take the matter before the Equal Opportunities Tribunal, which has the powers of the High Court to grant redress.
Under the Equal Opportunity Act, the individual does not have to pay for any legal services before the Commission or the Tribunal. The legal staff of the Commission undertakes that responsibility.
The Equal Opportunity Act makes it possible for an individual to get redress for unequal treatment against him, even if the wrongdoer is the private sector and not the State.
The right to equality of treatment in the Trinidad and Tobago Constitution has, therefore, become more meaningful because the ordinary individual in Trinidad and Tobago now has access to institutions to complain about any inequalities and the new institutions have the power to investigate and redress the wrongs.
Governments also have a duty to repeal existing laws which obstruct the effective enforcement of human and fundamental rights.
In Trinidad and Tobago, there was a law which stated that decisions of the Public Service Commission, the Teaching Service Commission, the Police Service Commission and the Judicial and Legal Service Commission – Commissions which are responsible for the appointment, transfer and discipline of their officers – shall not be questioned in any court of law.
This Clause ousting the jurisdiction of the court obstructed individuals in their enjoyment of their fundamental and human rights. As Attorney General, I took steps to have the law repealed, thereby making these Commissions fully answerable to the courts for the violations of the fundamental rights of individuals.
Let us take another example. In Trinidad and Tobago the individual did not have a right to get State held information. The Constitution however guaranteed the right to the freedom of thought and expression and the freedom of the press. These constitutional rights could not be properly enjoyed by individuals as against the State if they were unable to get government held information.
I took steps to enact a Freedom of Information Act which gave to individuals a statutory right to get government held information.
Laws must not only speak human rights but they must deliver human rights.
The laws of Trinidad and Tobago from colonial times discriminated against members of the Spiritual Baptist religion in that it was a criminal offence for them to assemble and beat drums which were an important part of their religious observance. The colonial laws which continued in Trinidad and Tobago also treated the non-Christian religions in an unequal manner in that the offence of blasphemy only applied to the Christian religion. The Constitution of Trinidad and Tobago guaranteed equality of treatment of religions and the right to religious observances. As Attorney General, I took steps to repeal the offending laws against the Spiritual Baptists and to make it an offence to villify any established religion.
The Constitutions of Commonwealth Caribbean countries guarantee the enjoyment of the various human and fundamental rights. A person who alleges that any of his fundamental rights contained in the Constitution has been, is being or likely to be infringed in relation to him he may apply to the High Court for redress and the High Court is given the power to grant redress for the purpose of enforcing or securing the enforcement of the provisions of the Constitution of which the person concerned is entitled.
The Judiciary is therefore given the power of review of State action – legislative, executive or judicial and to declare any such action unconstitutional, null and void and of no effect.
The relation of the judiciary to human rights in the Caribbean is fundamental. The Constitutions make the judiciary the watchdog and guardian of the constitutional rights of the individual.
The respect for the various human rights and fundamental freedoms therefore depends to a significant degree on the quality of the judiciary and the judicial process.
The Universal Declaration of Human Rights emphasizes that every human being has the right to “equality before the law”, “presumption of innocence” and the right to a fair and public hearing by a competent, independent and impartial tribunal established by law. These rights are also embodied in Caribbean Constitutions.
The protection of human rights in the Commonwealth Caribbean is closely linked to the functioning of a fair, legitimate and effective justice system.
A competent, independent and impartial judiciary forms a central aspect of such a fair and effective legal system.
Other stakeholders also play an important role in determining the extent of the enjoyment of human rights. These stakeholders include lawyers, the government, the parliament, the press and the communities.
No democracy based on the rule of law can survive unless there is truly a competent, independent and fearless judiciary. This is especially so where the judiciary as in the Commonwealth Caribbean is entrusted with the task of keeping every organ of the State within the limits of the law, thereby making the rule of law meaningful and effective.
The power and authority given to the Judiciary to grant redress for the contravention by the State of the human and fundamental rights enshrined in the Constitutions is a most potent weapon in the armoury of the law to protect the citizen against violation of his fundamental rights.
Decided cases in the region show the important role which the judiciary plays in protecting the rights of the citizen against the abuse of power by the State or its officers in contravening the fundamental rights of individuals. The Courts safeguard the individual interests against unconstitutional action by the State.
In order for the Judiciary to perform this important duty in protecting the individual against unconstitutional action by the State it must have the following characteristics:-
(1) The Judiciary must be and must be seen to be impartial and independent of government and of any other centre of financial or social power.
(2) The Judiciary must be incorruptible by prospects of reward or personal advancement.
(3) The Judiciary must be fearless of applying the law irrespective of public acclaim or criticism.
(4) The Judiciary must be competent. It must consist of judges who know the law and its purpose and who are alive to the connection between abstract legal principle and its practical effect.
(5) The Judiciary must enjoy the confidence of the people. If it loses the public confidence it loses its authority and as a result loses its ability and credibility to perform its functions.
(6) The Judiciary must recognise that it stands between the citizen and the State as a bulwark against unconstitutional abuses and excesses by organs of the State and it has a duty to act to protect the rights of individuals.
(7) The Judiciary must give a liberal interpretation of the Constitution to give effect to the terms and spirit of the Constitution.
(8) The Judiciary must hear and determine constitutional cases quickly as excessive delays in the hearing and determination of constitutional cases can make the human rights protections in the Constitutions meaningless.
The interpretation of the Constitution by Judges decide whether aggrieved individuals get redress for breaches of their fundamental rights.
Law making is an inherent and inevitable part of the judicial process. The Judge moulds and develops the law and sometimes create new norms in the process of the interpretation of the law. This process of law making through legal interpretation must be appropriate and adequate enough to meet the needs of the society and achieve the objectives and goals set out in the Constitution.
Judges are not mimics. Greatness on the Bench lies in creativity. The Judge whenever the Constitution or the law comes before him has to invest the Constitution and the law with meaning and content to achieve a social purpose of the law and the values embodied in the Constitution.
Law derives its legitimacy from justice. People obey law if it is just and in accordance with the norms and values set out in their supreme law – their Constitutions.
ROLE OF LAWYERS
The Universal Declaration of Human Rights adopted in 1948 states:-
“It is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law”.
What really gives meaning to human rights is the capacity and competence of an independent legal profession to uphold human rights and the willingness of an independent judiciary to protect human rights. If an independent judiciary is the backbone of the rule of law an independent legal profession is the catalyst that helps to achieve it.
In every kind of civilization and in every form of political system the pursuit of justice is important. It is a basic and primordial instinct in every human being and every society to attain it through its legal system. The degree of success attained by the legal system may be measured by the extent of which it succeeds in giving the instinct for justice. It cannot succeed in reaching this goal and fulfilling the instinct for justice unless a strong and independent legal profession is ready to espouse the cause of justice.
Lawyers have to transcend their immediate preoccupation with cases of their clients and realize their lofty mission of serving the ends of social justice. They must use their talents, knowledge and skills coupled with high prestige and dedication in a position to blaze a trail for social justice.
Political democracy cannot last unless there lies at the base of it social democracy. Social democracy is a way of life which recognizes liberty, equality and justice. They form a vision of trinity in a sense that to divorce one from the other is to defeat the very purpose of democracy.
The development of public interest litigation in India is a vivid example. Lawyers fulfilling their commitment to social justice acting pro bono assisted ordinary people in seeking redress for wrongs committed by public authorities. The Courts interpreted the Constitution of India and disregarded the traditional concepts of locus standi and heard and determined public interest litigation although they were not filed by the aggrieved individuals. A complaint written in a letter addressed to the Court by public spirited persons find way to the Courts, to be taken up as a new case. The Supreme Court of India has held that a clean and wholesome environment is a prerequisite to enjoy the right to life enshrined in the Indian Constitution as a fundamental right of all persons.
The Supreme Court of India in public interest litigation allows only bona fide public spirited persons and organisations to approach it in pursuit of a matter of public interest, especially those concerning persons in a disadvantaged position.
The Court examines facts through Commissions appointed by it, rather than merely relying on versions presented by both sides through affidavits. The non-adversarial inquiry through expert Commissions appointed by the Court often helps the Court to understand the realities of the case and to arrive at a just decision.
Verdicts often come in the form of directives to the government to cure the wrongs. In doing so the Court does not lay down any new law or policy, but compels the unwilling governments to discharge their duty within the spirit of the law.
The Court has among other things closed down limestone quarries and chlorine plants which posed threats to healthy environment and it ordered companies to stop discharging their trade effluents into rivers.
The media also has a duty to assist in ensuring that the human and fundamental freedoms are effectively enjoyed by individuals. They have a duty to criticise the judgments of the Courts and the administration of justice if they deserve criticism. The media has a duty to assist in creating public awareness of the importance of human rights.
The media, the government and the legal profession should work together to have public legal education programs to educate the people on the importance of fundamental rights, and the enjoyment of these rights by them.
Since access to justice is important, if fundamental rights are to be effectively enjoyed it is imperative that government take steps to improve the legal aid programs so that persons who feel aggrieved about the violation of their rights can get legal representation to assist them in vindicating their claims. Legal Aid programs should include assistance in giving advice and the programs should be decentralized so that members of the public would have easy access to get legal advice and assistance.
There is a significant change taking place in the nature of litigation coming before the Courts. The problems of the poor are now being brought before the Courts with increasing frequency. The door of the Courts have been thrown wide open for the poor and deprived sections of the community. Access to justice which is a basic human right has been made available to them through various reforms of legal aid schemes and strategies of Legal Aid programs.
The traditional methods and tools employed by the Courts under an adversarial system of justice are wholly inappropriate to tackle these problems. The Courts are called upon to forge new methods, fashion new tools and evolve new strategies for the new kinds of problems which come before the Courts.
The judiciary needs to confront, honesty and boldly, its place as servants of the law in a New World Order, concerned with democracy, human rights and the rule of law.
In discharging its duty, the judiciary must administer and interpret the law in a manner to produce socio-economic justice to satisfy the rights of individuals who are priced out of the justice system.
The judiciary would not be able to do this unless it has the assistance of a legal profession committed to the dynamic concept of the Rule of Law. The legal profession must be conscious of its social responsibilities and must be keenly aware of the need to mould the law, creatively and imaginatively, in the service of the weaker sections of humanity.
Lawyers have to shake off their old traditional approach where they looked upon themselves merely as professional persons paid to argue for their clients. They must acquire a new ethos, a new sense of values and a new social awareness.
The lawyers must mobilise social and economic power for deprived sections of the society through legal institutions and the judicial process. They have to create new strategies for the purpose of bringing the problems of the poor to the courts and finding solutions to them.
They have to assist in the innovation of new strategies for the purpose of bringing socio-economic justice within the reach of the vulnerable sections of the communities and ensuring that these communities enjoy their social and economic entitlements.
Public interest litigation is assuming great importance and is helping to bring the problems of the weaker sections of humanity before the Courts. This is an important tool which lawyers can use to assist non-governmental bodies and public spirited individuals to approach the Courts in order to get redress for the violation of the fundamental rights of the economically marginalized, the have nots, the lowly, the lost and the poor and those who are left out of the justice system.