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Course Title: Commonwealth Caribbean Human Rights Law

Question 1
All human beings have inherent dignity which demands a certain kind of respect and protection
by others among them in society. The right to life is one of the most essential human rights not
just in the Commonwealth Caribbean but throughout the world. Article 3 of Universal
Declaration Human Rights reiterates that “everyone has the right to life, liberty and security of
person”. Similarly in Article 6 of International Covenant on Civil and Political Rights it states
that “every human being has the inherent right to life. This right shall be protected by law. No
one shall be arbitrarily deprived of his life”. There is a strong interest in the relationship between
the International Human Rights Law and the laws in the Caribbean Courts. This essay will focus
on the implications of General Comment 36 (2018) of the UN Human Rights Committee on the
right to life in Caribbean constitutions.

Firstly, the Human Rights Committee General Comment 36 looks at Article 6 of the International
Covenant on Civil and Political Rights. There are a number of subsets as it relates to the death
penalty which includes unconstituional delay. As it relates the unconstitutional delay, in the key
case of Pratt & Morgan v Attorney General [1993], the decision was made by the Privy Council
that in cases where an execution takes more than five years after the sentence, there is strong
foundation to prove that there is inhuman or degrading treatment and instead the death penalty
should be reduced to life imprisonment. A link can be made between the judgement in this case,
based on what was said in paragraph 40, which advocated about the implication that the delay in
an execution of the death penalty has and also that it violated article 7 of the International
Covenant on Civil and Political Rights. This article outlined that “no one shall be subjected to
torture or to cruel, inhuman or degrading treatment or punishment”.Similarly, in the case of
Neville Lewis v Attorney General [1994], the rule regarding the death penalty was basically
concreted in a sense that in the case of Pratt & Morgan v Attorney General [1993] the idea of the
delay in execution of the death penalty was just a presumption that was made by the courts. The
Neville Lewis case in fact reiterated that if someone has stil not been executed after five years of
being sentenced to the death penalty would be a violation or infringement on Article 7 as
expressed above. Also, in situations where this arises and there is no execution and the individual
is sentenced to life imprisonment,then there will be no violation to Article 7 of the ICCPR
concerning the issue of delay.

In addition, paragraph 37 of the General Comment 36 (2018) of the UN Human Rights

Committee disapproves the issues surrounding the mandatory death penalty. This is the general
approach taken by the courts in interpreting the provision which gives effect to the mandatory
death penalty. As seen in Reyes v R [2002],the courts disapproved the mandatory death penalty
which was imposed on Reyes. Based on the law in Belize at the time, once a person committed
murder, that individual without a doubt would have been sentenced to the mandatory death
penalty. However, in this instance, the court held that issuing the mandatory death penalty would
be equal to inhuman and degrading treatment and to remedy this would be to allow the appellant
to make representation concerning the circumstances in their case to prove why the mandatory
death penalty would be unreasonable in this regard. The same arguments were mentioned in R v
Hughes [2002], where the court spoke on the concerns relating to the mandatory death penalty
however in this case the law regarding the death penalty was saved but the court still managed to
override it through their generous interpretation of the Saint Lucian Constitution. As such, they
had accepted the reasonings laid out by the Court of Appeal which addressed the matter of the
savings law clause being able to authorize the death penalty, however, they were able to prove
that this did not mandate the death penalty. Another key case is Lambert Watson v R[2004],
which reiterated the conclusion made in the two previous cases that not allowing an individual to
make representation based on the circumstances will in fact amount to inhuman and degrading
treatment.The imposition of the death penalty should be done in the worst circumstances where
the person who has committed a crime which would have warranted the death penalty is in no
way susceptiple to any kind of reform.

Additionally, as it relates to the linkage between the right to life and abortion, there has not been
much arguments and cases which expounded on this situation. Sections 58 and 59 of the Offences
Against the Person Act [1861] in Northern Ireland was ultimately against abortion and expressed
that a person who carries out an abortion unlawfully or anyone who assists someone in carrying
out an abortion unlawfully, that person should be sentenced to life imprisonment. However the
Criminal Justice Act [1945] in a sense conflicted the OAPA [1861] as it allowed abortion in rare
circumstances in which it will protect the life of the mother but if the abortion is not in line with
this exception then that is when it would become a criminal offence. In the case of Re Sarah
Ewart
[2019], she was a pregnant lady who had to travel outside of Northern Island and go to England
to carry out an abortion as a result of abortion being illegal in Nothern Ireland since there was no
risk induced by the pregnancy to her life. After the abotion however, she was denied entry to
Northern Ireland with the remains of the foetus and as such she brought a claim before the court
on the grounds that her right to privacy and family life had been violated. The Supreme Court
held that her rights were in fact breached.The abortion laws established in Northern Ireland were
found to be in breach of the International Covenant on Civil and Political Rights by the United
Nations Human Rights Committee as seen in the case of Re Sarah Ewart [2019]. The
Information Act gave medical practictioners the right to share information relating to abortion
such as the options they may have or more details on how to lawfully go about an abortion with
females, however it allowed for the criminalization as it was said that once a female’s life will
not be at risk nor was the pregnancy caused by incest or rape then it would amount to promoting
unlawful abortion.
In conclusion, the General Comment 36 (2018) of the UN Human Rights Committee is not much
different from the arguments made towards life and the implications that this may have on the
death penalty which is an evolutionary issue in the Commonwealth Caribbean as seen in the
judgements of the many different cases.The courts did in fact take the same approach as the one
in the General Comment 36 (2018) of the UN Human Rights Committee which highlighted that
the mandatory death penalty is unconstitutional as it is inhuman and degrading. Laws relating to
the criminalization of abortion in the Commonwealth Caribbean does not regard the laws
surrounding the right to life.
Word Limit: 1223

Question 2
Issue 1: Does Zara and the Press Association of Anuja (PAA) have standing to challenge the
constitutionality of the Mass Media and Press Act?
Rule: If any person alleges that any of the provisions of sections 3 to 17 (inclusive) of this
Constitution has been, is being or is likely to be contravened in relation to him (or, in the case of
a person who is detained, if any other person alleges such a contravention in relation to the
detained person), then, without prejudice to any other action with respect to the same matter that
is lawfully available, that person (or that other person) may apply to the High Court for redress.
Analysis: Based on the scenario, Zara was denied accreditation, as it was expressed by the
Minister of Information that the reason for this decision is because her work is undermining
confidence in public affairs and she is not a respectable journalist and this in fact would
‘reasonably’ affect her. On the other hand, the Press Association of Anuja (PAA) would also be
affected by the decision made by the Minister of Information as she is a member of this
association.
Conclusion: Zara and Press Association of Anuja (PAA) would have standing to challenge the
constitutionality of the Mass Media and Press Act.

Issue 2: Whether Zara’s right to freedom of expression had been violated?

Rule: According to Section 12 (1) of the Antigua and Barbuda Constitution, “a person shall not
be hindered in the enjoyment of his freedom of expression, including freedom to hold opinions
without interference, freedom to receive ideas and information without interference, freedom to
communicate ideas and information without interference (whether the communication is to the
public generally or to any person or class of persons) and freedom from interference with his
correspondence”.
Analysis: In a democratic society, everyone has the right to express themselves freely. Once
these rights have been violated then an individual may bring the case before the court. As
stipulated in R v Oakes [1986], the person who brings the claim to court is the one who the
burden of proof is placed on, and in this case Zara would have to prove that there was an
infringement of her right to freedom of expression.In making reference to Hector v AG [1987],
Hector was charged with the offence of printing a false statement which would likely undermine
public confidence in the conduct of public affairs. He had expressed that this charge which
forbade his action did in fact breach his right to the freedom of expression. The court was in
agreement as they believed that making his actions an offence would have a great impact on his
freedom of expression due to the fact that it will ultimately limit public criticism of the
government. The law was held to be unconstitutional since the government of Antigua and
Barbuda was unable to prove the reason for the limitation of the right. It was obvious that the
denial of accreditation was as a result of Zara being a Rastafari and the religious customs that she
practiced rather than her undermining confidence in public affairs.
Conclusion: Zara’s right to freedom of expression was violated.

Issue 3:Were the limitations imposed on the right to freedom of expression be reasonably
justified?
Rule: Nothing contained in or done under the authority of any law shall be held to be
inconsistent with or in contravention of this section to the extent that the law in question makes
the provision- that is reasonably required; in the interests of defence, public order, public
morality or public health.
Analysis: Legislations may limit the rights of individuals in rare circumstances where it is
reasonably justifiable to protect national security, public order, public health, and public morals
of those individuals in a democratic society.What needs to be established at first is whether the
right is a law, then, if it is a law, that is where the limitation could possibly arise. In other words
these limitations should also be prescribed by law as stipulated in the Antigua and Barbuda
constitution. In the case of Freitas v Permanent Secretary of the Ministry of Agriculture,
Fisheries, Land and Housing [1999], the test which established the extent to which the limitation
is rational and proportionate in relation to its justification was extensively discussed. Three
criterias were examined in Freitas v Permanent Secretaryof the Ministry of Agriculture,
Fisheries, Land and Housing [1999] and the Oakes test expanded this as there was a fourth
criteria which was not mentioned in Freitas. When deciding if any piece of legislation affects
public order one should first look if it interrupts the present lives of individuals in a society.
According to the Dangerous Drug Amendment Act of Jamaica [2015], the smoking of ganja is
legally permitted in places where it is licensed to do so and for sacramental purposes in line with
the Rastafarian faith in registered locations of worship. Based on the scenario Zara was denied as
a result of her religion and this would not constitute public order but it would give rise to
dicrimation against the Rastafarian faith and religion. The limitation that was imposed in this
regard had nothing to do with public order because despite her being a Rastafari it stated that she
was an independent journalist in Anuja which could make one arrive at the decision that she is
competent in carrying out her job nevertheless. Also, the comment that was made in relation to
the smoking of ganja influencing criminal behavior is a speculative one as there was no evidence
presented to prove this point. It was said that Zara and the PAA could not rely on the usage of
ganja for religious sacrament in the Anujan courts as the ICCPR was not incorporated into
domestic law, however, if there is ambiguity in domestic law, the interpretation which follows
the treaty should be followed.
Conclusion: The limitations imposed on the right to freedom of expression could not be
reasonably justified since it was not proportionate and was irrational.

Issue 4: What remedies are available to Zara and Press Association of Anuja (PAA)?
Rule: Where the High Court makes a declaration under this section that a provision of this
Constitution has been or is being contravened and the person on whose application the
declaration is made has also applied for relief, the High Court may grant to that person such
remedy as it considers appropriate, being a remedy available generally under any law in
proceedings in the High Court.
Analysis: In the case of Attorney General v Ramanoop [2005], it was held that a person whose
rights have been violated or breached may be compensated if that individual suffers any
damages. Zara and he Press Association of Anuja (PAA) would have suffered damage as they
would have lost their opportunity to report on the work of the Parliament and this could also
result in a decline in pay for Zara throughout that period as it outlined that her job was a
journalist and she would solely be earning from this. As a result of this they make a claim to the
court in order to be compensated for their loss.
Conclusion: Zara and the Press Association of Anuja (PAA) could receive compensation from
the government.
Word Limit:1213
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