“Massacre in Tivoli”.

“Police death squads uncovered”

These headlines tell the story of state violence, sanctioned as a legitimate tool to fight the rise in violent crimes in Jamaica. Undoubtedly, violent crimes are a major concern. The homicide rate in Jamaica is higher than regional averages and the country has the sixth highest homicide rate in the world. In Kingston, almost half the population (48.8 percent) reported having lost someone close to violence. The majority of the victims and perpetrators of violent crimes are young Black men, between the ages of 16-24, residing predominantly in low-income inner-city communities that sit on the margins of society.

To deal with the crime problem, the government, in the last three decades, has introduced specialised police units to handle violent crimes, declared extended states of emergency, sought support from the UK’s Scotland Yard and the US State Department, unofficially endorsed extra-judicial killings by law enforcement and most recently enacted the Law Reform (Zones of Special of Operations) (Special Security and Community Development) Measures Act (hereinafter ZOSO) and the Criminal Justice (Suppression of Criminal Organisations) Act (hereinafter anti-gang legislation).  The underlying ideology behind of all these crime fighting strategies has been an insistence that fighting violent crimes requires the use of greater violence to crush criminality. While this approach has resulted in temporary drops in violent crimes, the government is still grappling with how to sustain the reduction.

The government’s crime fighting strategies miss the mark because they, in many ways, contribute to the legal estrangement that fuels crime in marginalised communities.  For example, the State continues to grapple with distrust of law enforcement that exists within marginalized communities because the government has, over the years, sanctioned (whether directly or indirectly) the unlawful use of force by security officers to kill or injury people deemed “criminal elements”. Between 1990 and 2000, more than 1,400 people were shot dead by the police in questionable circumstances. Young black men and their relatives from poor inner-city communities are the principal victims of extra-judicial action. Some notable incidents include the Green Bay Massacre and the brutal massacre of at least 70 unarmed young men in Tivoli Gardens. Most recently, a former police officer revealed the existence of police death squads, in which lower ranked officers were given commands from senior officers to execute suspected criminals. Even though the Independent Commission of Investigations (INDECOM) has secured 21 convictions against law enforcement for extra-judicial action as of March 2016,  the culture of state sanctioned violence with a lack of institutionalised accountability within the police force remains.

Additionally, the government’s crime fighting strategies have failed because they do not address the gendered nature of violence. There is an inextricable link between violence and masculinity which manifests in men being the major perpetrators of all violent crimes and law enforcement embodying masculinity, even where the law enforcement officer appears in a female body. While lawbreakers and law enforcement officers are bitter enemies, they are also “united in a kind of masculine community” where violence – a symbol of masculine power- is the only antidote to violence. The most respected or feared police officers are those who have mastered the “badman” persona of being tough and extremely violent.

But can we have justice without the use of violence? If we understand justice as punishment (eye for an eye, tooth for a tooth) then a violent act can only be repaired with violence and people can only behave well if they are controlled/dominated with force. But, if we understand the ultimate goal of justice as repairing harms through healing and transformation, there can be other means to achieve justice. Perhaps restorative and transformative justice could provide the alternative and heal the harms of violence while at the same time transforming harmful gender norms and dissolving the alienation experienced by marginalised communities.

This post forms part of our series Black Lives Matter: What Next After 2020, the remaining post in the series can be found here.

One of the issues on appeal was whether the Charter allowed for horizontal application in Tomlinson’s case. The Jamaican Charter of Rights is one of the few in the world (along with that of South Africa) which expressly allows for horizontal application. Under section 13(5) of the Charter, an aggrieved citizen may bring a constitutional claim against a private entity, but only if the nature of the right and the duty it imposes make it desirable for that private company to be held liable.

Section 13(5) recognizes that it is not only the state that is capable of abuse of power but also private entities exercising control and influence over the way ordinary people live their lives.  In modern societies private entities wield socio-economic power that is equal to, and sometimes greater than, that exercised by the state. Private companies, and especially those who control platforms that millions of people rely on to exercise their free speech, should therefore have comparable state obligations to not hinder an individual’s free speech on unjustifiable grounds. Free speech’s importance to democracy makes the imposition of comparable obligations an imperative.

While the Court of Appeal recognized that the Charter binds private entities, it unfortunately failed to apply section 13(5)’s rationale to its assessment of Mr. Tomlinson’s contentions. The court reasoned that both parties had rights that were protected by the Charter and to find for Mr. Tomlinson would mean infringing the television stations’ rights to editorial freedom. In light of section 13(5)’s underlying rationale, this reasoning does not withstand scrutiny.

While courts must balance the competing rights of the parties, Tomlinson’s case was not concerned with balancing the competing interests of two equally situated parties, but that of a David and two Goliaths. Tomlinson not only had less socio-economic power than the television stations, but he is also a member of the marginalized, and in many cases, criminalized, LGBTI community. The balance must therefore swing in favour of David.

The Court of Appeal found that the right to freedom of expression does not include the right to use another’s platform to broadcast your views. However, the court failed to give due regard to a societal context in which Jamaicans can only access the free-to-air television platform by going through the two television stations in question. The stations are therefore able to dictate both who gets access to, and what is broadcast on local television. Further, the more a private entity opens its property to the public for its own advantage, the more its proprietary interests become circumscribed by the constitutional rights of others. It is only fair to expect these companies to exercise their proprietary rights in a manner that is not arbitrary, unreasonable, or discriminatory.

The television stations invoked the criminalized status of consensual same-sex sexual activity, and the threats of homophobic violence, to “justify” their refusal to air Tomlinson’s ad. However, airing an ad promoting respectful treatment for LGBTI people ought not be controversial (regardless of the antiquated and discriminatory criminal laws which remain on the books). Pandering to the views of homophobic viewers at the expense of promoting respect for a stigmatized group is clearly unjustified discrimination.

Powerful private companies controlling platforms, which people use to exercise their free speech or other rights, must be subjected to greater regulation to prevent what happened to Tomlinson. The Jamaican courts missed the opportunity to use 13(5) to give Tomlinson an available remedy.

Forsythe stated in his affidavit that:

“Ganja is integral to my religion as a Rastafarian and I should not be made a ‘criminal’ because of my Religion’s definition of Ganja not as “drug’ but as a “Plant” and be declared a “dangerous person” explicitly or impliedly only because of my adoration and usage of Ganja as a sacrament regarding it as I do as the “body of Christ” and observing it in the same divine manner in which the Established Church observes the Eucharist…”

The three-member bench unanimously rejected the submissions. The reasoning was based both on restrictions on Constitutional rights in the interest of public health, and the protection afforded to the Dangerous Drugs Act by a “savings ” clause which ring-fenced laws in existence when the country gained political independence in 1962 against constitutional challenge.

The 2011 reform of the Jamaican Constitution included the repeal of the “savings” clause, and the enactment of a new Charter of Fundamental Rights and Freedoms. Justice Minister Mark Golding has asserted that the government believes the Dangerous Drugs Act could no longer withstand a constitutional challenge under the new Charter, and Parliament has just passed legislation amending the Act.

Although Jamaica is the first Caribbean country to reform its legislation governing the use of marijuana, it is part of a growing international trend. Portugal decriminalized possession of marijuana over a decade ago, Uruguay has already legalized marijuana, as have Colorado, Washington State and Alaska, in the US.

The legislation decriminalises general possession of marijuana of two ounces or less, making it a non-arrestable, ticketable offence instead (s. 7 C read in light of s.7 F (3) and s.7 G (1)), while also exempting from the Act the possession of marijuana specifically for “religious purposes as a sacrament for the Rastafarian faith.” (s.7 2(c)(a)). The Justice Minister may allow cultivation of ganja for religious purposes once satisfied that applicants are Rastafarians, and may declare events as ‘exempt’ once they are promoted by a Rastafarian, primarily for celebrating the Rastafarian faith (s.7 D (8)). If an event has been designated exempt, no one conveying ganja to, or possessing or smoking it at, such an event will be liable for arrest, detention or prosecution (s.7 D (9)). Also, smoking of marijuana, like tobacco, will now be banned in public places, except for registered places of Rastafarian worship.

The enforceability of these amendments is problematic for police and prosecutors. Firstly, in relation to the small quantities of marijuana, often the weight will not be immediately ascertainable. The provision allowing for possession of ganja being conveyed to a Rastafarian ‘exempt’ event raises similar questions of discretion and enforcement.

Secondly, although designed to protect religious rights, it seems likely that the distinction made in the legislation between Rastafarians and non-Rastafarians, coupled with the restrictive limitations placed on non-religious personal possession and use, will create serious enforcement problems if the police are not to completely ignore the border between what is, and is not, designated criminal. Cultivation for personal use (assumed to be medicinal), for example, is restricted to five marijuana plants per household.

Jamaica has taken this clumsy legislative route because of the government’s need to balance the decriminalization of the widely-practiced smoking of marijuana, the protection of rights and the development of a medical marijuana industry, while avoiding full legalization in order to remain compliant with international narcotics conventions, such as the 1961 UN Single Convention on Narcotic Drugs.

In the months to come, it should become clear whether the protocols and regulations to be developed by the state will enable its multiple intentions to be achieved.

One example is public transport, which is currently insufficient for the disabled. The recent announcement that four of 73 new public passenger buses were equipped to carry the disabled was noted as inadequate by a disabilities advocate. Jamaicans living outside of the capital Kingston have even less access to disabled-friendly public transport.

The Disabilities Act deals shortly with the issue of public transport stating only at s. 40 that:

“The Minister with responsibility for public passenger vehicles shall ensure as far as is practicable, the provision of public passenger vehicles that are accessible to and useable by persons with a disability.”

The Act uses the “progressive realization” language familiar to economic, social and cultural rights, so it will be important to see how it is interpreted. What will “as far as is practicable” mean in a country where, as of March 2014, the national debt stood at 140 percent of GDP, growth for the past 20 years has averaged 0.6%, and where GDP per capita for 2012 was US$5294?

The UN Convention also provides for progressive realization of the rights of the disabled, stating at Article 4 (2):

“With regard to economic, social and cultural rights, each State Party undertakes to take measures to the maximum of its available resources and, where needed, within the framework of international cooperation, with a view to achieving progressively the full realization of these rights…”

Creating space in tight budgets to realize economic, social and cultural rights is a problem faced by all developing countries, as exemplified by the South African case Government of the Republic of South Africa and Others v Grootboom,where the issue before the courts was how the constitutional right of access to adequate housing should be interpreted in the context of limited government resources.

The proposed legislation provides in s. 25 that “a person with a disability shall not by reason of such disability be subject to any form of discrimination.” When s. 25 and s. 40 are taken together, it appears that the Minister responsible for transport will be able to rely on the proviso “as far as is practicable” in countering any claim of discrimination. This will be especially important as Jamaica’s Charter of Fundamental Rights and Freedoms 2011 does not cite disability as a ground on which one can claim a constitutional right to freedom from discrimination, confining itself to the grounds of being male or female, race, place of origin, social class, colour, religion or political opinion. There is therefore no clear textual basis on which the Jamaican court may read in additional grounds of protection.

However, there is dicta to suggest that the wider provisions of the Charter may be invoked in discrimination cases even if the litigant’s status is not among the grounds protected. In Tomlinson v Television Jamaica, CVM and Public Broadcasting Corporation of Jamaica, a gay man claimed his right to freedom of expression had been infringed due to the refusal of three television stations to air a commercial promoting tolerance.

Supreme Court Justice Williams noted that Tomlinson could not seek redress for allegations of discrimination on the ground of sexual orientation, as that specific protection was not provided. “This may be viewed as a significant deficiency in this Charter but it is to be noted that the first paragraph of the Charter is comprehensive enough to point to a view that it be interpreted to embrace all the rights and responsibilities of all Jamaicans,” she stated.

Her dicta therefore suggest that the disabled community may have a constitutional leg to stand on. However, the absence of express constitutional protection for disability discrimination remains a major obstacle and renders the proposed statute all the more significant. It remains to be seen how rigorously the courts will interpret the state’s obligation of progressive realization in the face of limited economic resources.

After two decades of economic stagnation, however, it was agreed by the Heads of Government in the early 1990s that CARICOM should move to the next level of integration by establishing a Caribbean Single Market and Economy (CSME), which would, among other things, make provision for the free movement of certain categories of skilled CARICOM nationals. This right was accordingly embodied in Chapter III of the Revised Treaty of Chaguaramas (RTC), which was ratified in 2006. One year later, at their Annual Conference in July 2007, the Heads of Government went one stage further by deciding to grant all CARICOM nationals not only a right of entry, but also a right to an automatic six month stay upon entry (the 2007 Decision).

The implementation of this right has, however, proved to be very problematic. As Ralph Gonsalves, the Prime Minister of St Vincent has noted, his office regularly receives “heart rending stories of Vincentian nationals who have been subjected to unfair, unlawful, unconscionable, and discriminatory treatment by some immigration authorities within member states of CARICOM”. These claims are more than borne out by the facts of the recent case of Myrie v Barbados before the Caribbean Court of Justice (the CCJ). In this case, the claimant, a Jamaican national, had not only been refused entry by immigration officials upon her arrival in Barbados, but had also been subjected to insults based upon her nationality and to an unlawful body cavity search in demeaning and unsanitary conditions.

Though the central plank of the claimant’s case rested on the violation of her right of entry pursuant to the 2007 Decision, the claimant also alleged a violation of her fundamental rights and freedoms contained in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the American Convention on Human Rights. The lawyers acting for the Barbados Government, however, argued that this part of the claimant’s case in so far as it rested on international human rights law was outwith the CCJ’s jurisdiction and the CCJ agreed. In the CCJ’s view its jurisdiction was established and circumscribed by the parameters of the RTC and the Agreement Establishing the Court, which confine its jurisdiction to the interpretation and application of the RTC and secondary ‘legislation’ emanating from the competent organs of CARICOM.

It is, to say the least, unsurprising that the CCJ should decline to accept jurisdiction to adjudicate alleged violations of international human rights treaties, which generally provide their own dispute resolution procedures for such violations, though it did concede that the Court could and should take into account principles of international human rights when seeking to shape and develop relevant Community law. Nevertheless, it is disappointing that the CCJ did not take the opportunity to make more explicit the link between the rights granted by the RTC and the principles which underpin those rights, including not just the principles of human rights law, but also the constitutional traditions of its

Member States. This was done by the European Court of Justice in the Handelgesellschaft case when it declared that “respect for fundamental rights forms an integral part of the general principles of Community law…inspired by the constitutional traditions common to the Member States (emphasis added).” It is to be regretted that a similar step was not taken here.

Derek O’Brien is Principal Lecturer at Oxford Brookes and is a member of the Small Jurisdictions Service at Oxford Brookes.

These punitive laws exist in a context where the Caribbean has the second highest HIV prevalence rate after sub-Saharan Africa.   UNAIDS and even local Ministries of Health in the Caribbean region have identified that anti-gay laws drive the pandemic by creating toxic homophobic environments which restrict LGBT from engaging in heath-seeking behaviour.  Jamaican men who have sex with men (MSM) now have the world’s highest HIV prevalence rate among this vulnerable population (32.9%).  Unpublished research by Professor Peter Figueroa, head of Public Health at the University of the West Indies, Mona indicates that nearly 60%  of these men also form relationships with women and many do so as a cover for their homosexuality.  This provides an opportunity for HIV to bridge between the heterosexual and homosexual populations.

AIDS-Free World has been working in the Caribbean to eliminate laws and policies that inhibit a more effective HIV response. In 2011 we filed a petition at the Inter-American Commission on Human Rights to challenge the Jamaican anti-sodomy law (A.B., S.H. v Jamaica P-1249-11).  We have also initiated several domestic court challenges to laws that adversely affect LGBT persons. We launched the first-ever constitutional claim for LGBT rights under the 2011 Jamaican Charter of Fundamental Rights and Freedoms (Tomlinson v TVJ, CVM and Another 2012 HCV 05676).  This case was heard from May 27-30, 2013 and a decision is expected in September.

The facts of the constitutional claim are relatively simple: AIDS-Free World produced an ad in which I appeared that called for respect of the rights of gay Jamaicans.  The island’s two (2) private TV stations who operate under government license refused to air the paid ad citing, among other things, their right to freedom of expression in the form of editorial discretion. The national broadcaster, Public Broadcasting Corporation of Jamaica, made a similar argument.

Sections 13 (2) (c) and (d) of Jamaica’s new Charter guarantees the right to freedom of expression as well as a novel right to seek receive and disseminate information through any media.  The Charter also contains a provision that requires private citizens to guarantee the rights and freedoms of others.  For the purpose of the Charter, TV stations are private citizens.

This case will be the first opportunity for Jamaica’s Constitutional Court to define the test for how the competing rights of citizens should be balanced.  It is therefore a landmark case for several reasons.

AIDS-Free World has also launched a domestic challenge to Jamaica’s anti-sodomy law (Javed Jaghai v Attorney General of Jamaica 2013 HCV 00650), as well as an action before the Caribbean Court of Justice to have the anti-homosexual sections in the Immigration Acts of Trinidad and Tobago and Belize struck down (Maurice Tomlinson v Belize AND Maurice Tomlinson v the State of Trinidad and Tobago CCJ Application Nos. OA1 & OA2 of 2013).  We also supported the first-ever domestic challenge to the Belizean anti-sodomy law.  A case against the Guyanese cross-dressing law was also heard in early June.

All these legal initiatives have as a significant goal a paradigm shift in the way LGBT human rights are recognized in the Anglophone Caribbean.  This includes the right to health.  These cases were made necessary because of steadfast refusal by Caribbean governments to buck public opinion and provide for the rights of LGBT persons, even when this refusal was clearly having dire public health implications.  

Maurice Tomlinson is an attorney-at-law and has been involved in LGBTI and HIV and AIDS activism in Jamaica and the Caribbean for over 14 years.  He is Legal Advisor, Marginalized Groups for AIDS Free World, co-founded by Stephen Lewis and Paula Donovan.