International Human Rights Law in the Commonwealth Caribbean 9789004479418, 9004479414

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INTERNATIONAL HUMAN RIGHTS LAW IN THE COMMONWEALTH CARIBBEAN

International Studies in Human Rights

VOLUME 14

For a list of titles published in this series, see final page.

International Human Rights Law in the Commonwealth Caribbean edited on behalf of

INTERIGHTS

by ANGELA D. BYRE and BEVERLEY Y. BYFIELD

Martinus Nijhoff Publishers DORDRECHTffiOSTON~ONDON

Library of Congress Cataloging-in-Publication Data

Human rights law and the Commonwealth Caribbean. (International studies in human rights) Proceedings of a workshop held in Jamaica Oct. 1987 and organised by Interights and the Organisation of Commonwealth Caribbean Bar Associations. 1. Civil rights--Caribbean Area-Congresses. I. Byre, Angela D. II. Interights (Organization) III. Organisation of Commonwealth Caribbean Bar Associations. IV. Series. KGJ574.A6 1987 342.729'085 88-8307 347.290285 ISBN 9~247-3785-0 (Martinus Nijhoff)

Published by Martinus Nijhof Publishers, P.O. Box 163,3300 AD Dordrecht, The Netherlands. Sold and distributed in the U.S.A. and Canada by Kluwer Academic Publishers, 101 Philip Drive, Norwell, MA 02061, U.S.A. In all other countries, sold and distributed by Kluwer Academic Publishers Group, P.O. Box 322, 3300 AH Dordrecht, The Netherlands.

Printed on acid-free paper All Rights Reserved © 1991 Kluwer Academic Publishers Kluwer Academic Publishers incorporates the publishing programmes of Martinus Nijhoff Publishers. No part of the material protected by this copyright notice may be reproduced or utilized in any form or by any means, electronic or mechanical, including photocopying, recording or by any information storage and retrieval system, without written permission from the copyright owners. Printed in the Netherlands

TABLE OF CONTENTS

The International Centre for the Legal Protection of Human Rights (Interights) Introduction Acknowledgements I. Using the available remedies 1. Caribbean Constitutional Remedies

A.R. Carnegie 2. Fundamental Human Rights - A British judicial perspective Sir Nicolas Browne-Wilkinson 3. Appeals to the Judicial Committee of the Privy Council: problems and prospects Peter Jackson 4. Remedies under international law: the Inter-American system Christina M. Cerna 5. Discussions

II. Liberty and security of person 1. Liberty and security of person: Article 5 of the

European Convention Sally Dolle 2. Unlawful arrest and detention without trial: recent developments in U.S. law Margaret Burnham 3. Discussions

III. The right to a fair trial 1. The right to a fair trial under Caribbean Constitutional

law

Delroy Chuck 2. The right to a fair trial: Article 6 of the European Convention Beverley Byfield

v

ix xi

xiii

1 1

9 16 23 31

33 33 55 61

63 76

vi 3. Development of the United States' Constitutional guarantees of a fair trial Nathaniel Jones 4. Discussions IV. Access to court 1. Access to court for breach of fundamental rights in the Caribbean Margaret DeMerieux 2. Access to court: an Indian perspective Soli Sorabjee 3. Access to court under the Inter-American system Christina Cerna 4. Discussions V. Right to life and human dignity 1. The right to life and human dignity: Caribbean experiences Dennis Daly 2. The right to life and human dignity under the European Convention Sally Dolle 3. The right to life and human dignity: a U.S. perspective Margaret Burnham 4. Discussions VI. Freedom of expression 1. Freedom of expression in the Caribbean Rickey Singh 2. Freedom of expression under the European Convention Anthony Lester and Susan Hulton 3. Freedom of expression in the United States and beyond Nathaniel Jones 4. Discussions VII. Equality before the law 1. Equality before the law: interpretations by the Caribbean Courts Sir Denys Williams 2. Equality before the law: the European Convention and the International Covenant TorkelOpsahl 3. Equality and the Indian Constitution Soli Sorabjee 4. Discussions

100 116

119 125

132 138

141

152 170 176 179 185 211

226

229

244 257 278

vii

VIII. Freedom of association and trade union activities 1. Freedom of association in the Commonwealth Caribbean Ashton Chase 2. Freedom of association and the role of international organisations Sir William Douglas 3. Freedom of association under the European Convention Angela Byre 4. Discussions

281 286 298

305

IX. The role of governments in strengthening human rights

machinery 1. The role of governments in strengthening human rights machinery E. George Green 2. National institutions concerned with the promotion of human rights in Commonwealth countries Rose D'Sa 3. Discussions

309 317 329

x.

The role of non-governmental organisations in the protection and promotion of human rights 1. The Jamaica Council for Human Rights: a non-governmental organisation case study Florizelle O'Connor 2. A non-governmental organisation perspective on human rights action in the Caribbean Merle McCormack 3. The role of non-governmental organisations: structures, objectives and strategies Michael Posner 4. Discussions

331 348

359 366

Conclusions

369

Appendix

371

Contributors and participants

393

THE INTERNATIONAL CENTRE FOR THE LEGAL PROTECTION OF HUMAN RIGHTS (INTERIGHTS) INlERIGHTS is an international human rights law centre which assists individuals, lawyers, and non-governmental organisations, to make more effective use of existing legal remedies to protect human rights. It does so in several ways. INlERIGHTs: • advises individuals and non-governmental organisations on legal rights and remedies under international human rights law; in selected cases, it provides legal representation before international tribunals (such as the European Commission of Human Rights, the U.N. Human Rights Committee, the Inter-American Commission on Human Rights, and the International Labour Organisation); • assists lawyers in preparing the international legal aspects of their cases; • submits amicus curiae briefs before international fora in cases raising important issues concerning the interpretation of fundamental rights; • assists lawyers acting in human rights cases before domestic courts whether in litigation under legally enforceable Bills of Rights or in administrative law proceedings for judicial review - by providing ready access to relevant international and comparative case law; and • publishes a quarterly Bulletin which monitors the rapidly developing area of international human rights law. This contains a regular International Law Reports section to provide practising civil liberties lawyers - in Asia, Africa, the Americas and the Caribbean, as well as in Europe - with easy access to international standards and case law for use in domestic litigation. INlERIGHTS' expertise is provided, in most cases, on a pro bono basis. In addition to its own small staff of international lawyers, INlERIGHTS is aided by an expanding international network of lawyers specialising in relevant fields who volunteer their services in particular cases. By providing this practical support, the organisation seeks to strengthen the hands of those few lawyers who take up human rights cases, and to encourage and enable others to do so. INlERIGHTS is a non-partisan, non-profit making organisation, and a registered charity. It is funded largely by the Ford Foundation, the Nuffield Foundation, the London Boroughs Grants Scheme, the European Human Rights Foundation and donations. ix

For further information about

INTERIGHTS,

please contact:

INTERIGHTS, 5-15 Cromer Street, London NCIH 8LS, United Kingdom. Tel: (71) 2783230. Fax: (71) 2784334.

INTRODUCTION The contributions contained in this book provided the background material for three days of stimulating discussions which characterised the regional Workshop on the International Protection of Human Rights, held in Ocho Rios, Jamaica, in October 1987. The Workshop was jointly convened by Interights (the International Centre for the Legal Protection of Human Rights) and OCCBA (the Organisation of Commonwealth Caribbean Bar Associations). The Workshop had as its primary objective to increase awareness of the growing body of international and comparative human rights jurisprudence, of the existing international legal machinery, and to explore practical ways in which the domestic and international machinery can be used to strengthen and enhance human rights. The unique collection of papers which were prepared for and presented at the Workshop are brought together here in response to the participants' repeated requests for a permanent record of the proceedings. It is also an objective of publication to bring this important and rapidly growing body of law to the attention of those to whom it would otherwise be inaccessible. We hope that this collection may also contribute towards the achievement of the ideal described by the Chief Justice of Jamaica, the Hon. Mr. Justice Zacca, OJ, in his opening address to the Workshop: "the liberty of the individual and equal rights for all citizens are indicative of a just society. Denial of these rights constitutes injustices and threatens the valued principles of just men everywhere ... ". "For us in the legal profession, the sharing of information, ideas and experiences goes beyond a mere matter of academic or intellectual interest. We strive to be not only people who are knowledgeable, but also people who can use our knowledge to make the worl