GENEVA (19 October 2016) - The Human Rights Committee this morning completed its consideration of the fourth periodic report of Jamaica on how it is implementing the provisions of the International Covenant on Civil and Political Rights.
Presenting the report, Wayne McCook, Ambassador and Permanent Representative of Jamaica to the United Nations Office at Geneva, stated that Jamaica had made significant strides in the promotion and protection of human rights and in bolstering its human rights machinery since its last appearance before the Committee in 2011. The protection of all human rights of all Jamaicans had been enhanced through the adoption of the Charter of Fundamental Rights and Freedoms in 2011. The Cabinet had given approval for the establishment of a national human rights institution in line with the Paris Principles. The report of the Commission of Enquiry into the events in West Kingston in 2010 had been published, making a series of recommendations which were currently under consideration. The Police Complaints Authority received all complaints from persons who felt that they had been unfairly treated by members of the Police Force.
In the discussion which followed, Committee Experts asked about the direct applicability of the Covenant in Jamaican courts, the Charter for Fundamental Rights and Freedoms, and the timeline for the establishment of a national human rights institution. They asked questions about the abortion policies and their impact on maternal mortality, representation of women in political life, overcrowding of prisons, discrimination of HIV-positive persons and sexual minorities, and the worryingly high murder rate. Other issues raised by Experts included the definition of torture, access to information, the status of non-governmental organizations and human rights defenders, corporal punishment and the backlog of cases in courts.
In concluding remarks, Mr. McCook stated that Jamaica was a small country and rules mattered. Less than a year after its independence, Jamaica had made an appeal to ensure universal human rights; the same values underpinned the country’s approach today.
Yadh Ban Achour, Chairperson of the meeting, said that the Government of Jamaica had the best of intentions when it came to the protection of human rights. Policies were about intentions, but legislation was about walking the talk and actually acting.
The delegation of Jamaica included representatives of the Ministry of Justice, the Ministry of Foreign Affairs and Foreign Trade, and the Permanent Mission of Jamaica to the United Nations Office at Geneva.
The Committee will next meet in public today at 3 p.m., to consider the seventh periodic report of Colombia (CCPR/C/COL/7
The fourth periodic report of Jamaica can be read here:
Presentation of the Report
WAYNE MCCOOK, Ambassador and Permanent Representative of Jamaica to the United Nations Office at Geneva, stressed that an unwavering commitment to the promotion and protection of human rights was one of the defining principles on which the Jamaican nation was built. Jamaica had made significant strides in the promotion and protection of human rights and in bolstering its human rights machinery since its last appearance before the Committee in 2011. The protection of all human rights of all Jamaicans had been enhanced through the adoption of the Charter of Fundamental Rights and Freedoms in 2011. Jamaica’s commitment to human rights protection was embedded in
Vision 2030 - Jamaica’s National Development Plan 2009-2030. Jamaica was party to seven of the nine core international human rights instruments and two related Optional Protocols.
As a highly-indebted small island developing State, Jamaica’s public investment in all spheres of life, including human rights protection, was constrained by inadequate resources and limited fiscal space. Nonetheless, Jamaica was committed to maintaining and strengthening the mechanisms for securing the human rights and social well-being of its citizens. The Cabinet had given approval for the establishment of a national human rights institution in line with the Paris Principles; the institution would be a hybrid model, essentially expanding the scope of the existing Office of the Public Defender. The protection of the right to life and security of person was fundamental to the enjoyment of other civil and political rights contained in the Covenant; 2016 had seen a 32-per cent drop in violent and serious crimes as compared to 2015. Several legislative initiatives were geared towards enhancing the speed and fairness of trials. The removal of certain offences from the remit of the court had seen a 72-per cent reduction in the number of new marijuana offences from 2014 to 2015, reducing the caseload in the justice system.
Gender inequality was seen as an obstacle to development, which was why the National Policy for Gender Equality had been finalized in 2011. Legislature quotas for women were expected to be introduced. Women accounted for 58.9 per cent of workers in the public sector and 40.5 per cent in the private sector. Out of the 19 diplomatic missions, nine were headed by women; the Chief Justice was also female. Gender-based violence remained a challenge requiring a multi-faceted approach; a multifaceted action plan in that regard was being currently finalized. The Victim Support Unit of the Ministry of Justice was being upgraded, and the Sexual Harassment Bill had been tabled in December 2015. The report of the Commission of Enquiry into the events in West Kingston in 2010 had been published, making a series of recommendations which were currently under consideration. A compensation committee was to be established, and the security forces would investigate allegations against their members who might have used excessive force. In 2015, police killings had dropped to a 16-year low, said Mr. McCook.
Corporal punishment had already been outlawed in early childhood institutions, children’s homes and places of safety. The Office of the Children’s Advocate had continued its training for members of the judiciary according to its Child Justice Guidelines. The Jamaica Constabulary Force had developed the Child Interaction Policy and Procedures in November 2015. Now there were special quarters in specific police stations to accommodate children and separate them from adult detainees. The Trafficking Act had been amended in 2013, so that offences akin to trafficking had also been included. A National Rapporteur on Human Trafficking, reporting directly to the Parliament, had been appointed in 2015, making Jamaica the first Caribbean nation to embrace that approach. The Police Complaints Authority received all complaints from persons who felt that they had been unfairly treated by members of the Police Force, and the Office of the Public Defender received complaints from individuals regarding any government entity.
Turning to the responses to the List of Issues, Mr. McCook said that the Jamaican law did not criminalize gay or lesbian sexual orientation or status, and the Government was not aware of any mob killing of lesbian, gay, bisexual or transgender persons. Mr. McCook informed that torture was not defined as a separate offence in Jamaica’s criminal legislation, but acts amounting to torture were explicitly prohibited by the Constitution. Over the past three years, 33 persons had been granted refugee status, out of whom 10 had been voluntarily resettled to a third country or returned home.
Questions by Experts
An Expert informed that this autumn marked the fiftieth anniversary of the two International Covenants, but also of Jamaica’s initiative on national human rights institutions, which had made Jamaica a pioneer in that regard. The Expert asked the delegation to provide a date for the creation of its own national human rights institution.
The Committee was pleased that the diversity policies had positively affected the behaviour of the police forces vis-à-vis sexual minorities. A 2015 study had indicated that a large number of lesbian, gay, bisexual, transgender and intersex persons did not report incidents of physical or verbal assaults because they felt the incidents were too minor to be reported or because they had the feeling that the police would not take any action or had homophobic attitudes.
With regard to the underrepresentation of women, the Expert asked how many female Ministers and judges there were in Jamaica. What were the measures to correct gender inequality, and when would the temporary special measures be implemented?
A question was asked about the reconsideration of Jamaica’s abortion policy. When could the final decision of the authorities in that regard be expected, and what were currently the legal grounds for abortion? What were the costs of abortion and, if the woman did not have health insurance, who covered the costs?
What was the impact of the programme to reduce maternal and child mortality, launched in 2013, asked the Expert. Had the programme been evaluated?
Another Expert asked whether parties to a case in a Jamaican court could invoke the Covenant. Although not of legally binding effect, the views of the Human Rights Committee should be seriously considered, the Jamaican Privy Council had stated. Was human rights training, including on the Covenant, provided for judicial officials – judges, lawyers and prosecutors? Information was requested on training sessions.
According to civil society, Jamaica’s Charter on Fundamental Rights and Freedoms did not provide adequate protection of human rights guaranteed by the Covenant. How were the rights protected by the Covenant fully guaranteed under Jamaica’s legislation? Would individuals in Jamaica not be better off if they could submit communications to the Human Rights Committee? Why would Jamaica not re-accede to the Optional Protocol?
The capacity of adult correctional centres was not sufficient for the number of incarcerated persons, which was why overcrowding was a serious problem. The overcrowding in police lockups also seemed to be quite serious, and the conditions there were unsatisfactory health-wise. Were there finances for building new facilities? How about viable alternatives to imprisonment? The Expert wondered why the sentencing guidelines were not publicly available. There was no statutory framework for holding persons in pre-trial detention.
An Expert inquired about persons with disabilities, and wanted to know about investigations into cases of discrimination. When would the relevant body be ready to start functioning? What were the results of the two major surveys on persons with disabilities, he asked.
A question was asked on whether the sexual harassment bill had been debated in the Parliament yet, and what the outcome of that debate was. The Expert also wanted to know whether the work had commenced on the establishment of shelters for victims of gender-based violence.
The delegation was asked to provide information on measures to protect HIV-infected employees from discrimination in their places of work. What was done to punish discrimination when it occurred?
Turning to the death penalty, the Expert asked about reasons for the non-ratification of the Second Optional Protocol. Given that there was already a de facto moratorium, why would Jamaica not move forward and ratify the Protocol?
Another Expert brought up the issue of the Commission of Enquiry’s investigation into the 2010 events in West Kingston. What was the tentative timeline for the implementation of the Commission’s recommendations? Was there political will on behalf of the State to open all archives and documents relevant for the investigation?
To what extent did the Government believe that the Independent Commission of Investigation should be supplied with all the necessary means and resources for its work? The Expert asked about steps planned to further strengthen the operations of that investigative body. Some provisions required the Commission of Investigation to involve police officers to collect evidence, which could affect the independent running of its investigations.
The issue of lesbian, gay, bisexual and transgender persons was raised by another Expert, who said that same-sex conduct was still criminalized and failed to protect such persons from discrimination. What were the plans to address the situation?
With respect to persons with HIV, the Expert hoped that the State party would adopt anti-discrimination measures in that regard. Were there plans to increase budgetary support against stigmatization of HIV-infected persons?
Replies by the Delegation
The delegation said that Jamaica was proud of its work at the Third Committee of the General Assembly with regard to national human rights institutions. Countries like Jamaica had called for universal human rights back in the 1960s. The delegation could not provide a date for the act of the Parliament on the formation of such an institution in Jamaica.
The Inter-Agency Committee on Reporting had been set up by the Cabinet to report under the Universal Periodic Review, and its scope had been expanded ever since, to include reporting to other bodies as well. The process of making it permanent required certain administrative steps.
It was explained that, in terms of harassment or violence against lesbian, gay, bisexual, transgender and intersex persons, the police force held its members accountable for processing all complaints they received. Direct lines of communication had been established between the police command and lesbian, gay, bisexual, transgender and intersex organizations, and their representatives had been invited to make presentations to prosecutorial staff with the view of sensitizing them in that regard. No steps had so far been taken to change the provisions on homosexuality, but there were no reports of police actions against sexual minorities.
Regarding gender, the delegation said that there were four female Ministers at the moment. Temporary special measures had been discussed in the Parliament in July.
The HIV/AIDS policy was being currently implemented and it aimed to prohibit the discrimination of HIV-infected persons. It was dependent on voluntary compliance for the time being. More than 1,000 judges had been trained with regard to the policy. Most Ministerial departments and agencies had already implemented HIV-workplace policies.
On reproductive health, a delegate stated that the legislation was currently before the joint parliamentary committee and it was difficult to say when the discussion would be completed. Abortion was permissible on medical grounds, but no stipulations existed on what exactly those grounds were.
Turning to the issue of the Committee’s recommendations, the delegation said that the Privy Council remained the highest body in Jamaica’s judicial system and its ultimate point of review. Its functions were analogous to those of a high court of appeal. Constitutional and legal provisions existed for the implementation of the Covenant.
The General Legal Counsel, who had particular responsibilities for the legal profession in Jamaica, included human rights training in the curriculum for all those practicing law. It was important that lawyers were qualified and would continue to learn during their career.
No decision had been taken regarding accession to the Second Optional Protocol, stated the delegation.
The sentencing guidelines were not yet completed and were thus not publicly available. Regarding conditions in detention, it was explained that the resources were limited, but separate lockups for children had been created. Justices of peace inspected lockups. Jamaica had long admitted that it needed new facilities, but the country was still not in a position to finance this. The Disability Act had come into force this month, and the additional information requested would follow.
The Sexual Harassment Bill had been tabled in Parliament and it was expected that it would come up for debate as soon as it was scheduled.
It was intended that the sentences of persons on death row would be commuted to life in prison. Since a case in 2011, it had been difficult for death penalties to be imposed.
Follow-up Questions by Experts
An Expert understood that the law on abortion was quite general, but inquired on the decisions of administrative bodies in that regard. What was the case law – how were the existing provisions applied in practice?
There was an extremely high murder rate in Jamaica, noted another Expert. What were the State party’s views on structural causes for that trend, and what measures were being taken to address the challenge?
The delegation had said that because the Covenant did not have the force of law in Jamaica, the parties could not invoke the Covenant in courts. However, the Privy Council’s position was different, noted an Expert. Were there any other similar cases in the Supreme Court or the Court of Appeal, where a court had used the Covenant or another international instrument for interpretation purposes?
Civil society had said that there were rights which were not protected by the Jamaican Charter of Fundamental Rights and Freedoms, and, if that was indeed the case, the argument that all rights from the Covenant were covered by internal laws did not stand.
Another Expert revisited the issue of abortion and asked the delegation to provide further details. Unsafe abortions were reported to be among the leading causes of maternal deaths in Jamaica, she said. What steps were being taken to ensure that unsafe abortions did not present a risk to women?
Replies by the Delegation
The high rate of murders was a matter of great concern for the Government. There was a security side as well as a justice side to it, in the context of the right to life. The sources were being currently looked into and addressed. The delegation would come back with further information.
The delegation was not in a position to say that one could invoke provisions of the Covenant as a basis for legal determination. The rights contemplated by the Covenant were considered to be afforded in society. If there were specific concerns, they should be clearly voiced on rights which were not being met.
Provisions on abortion had been in place since 1975. It was lawful for a registered medical practitioner to terminate the pregnancy of any woman if the continuation of the pregnancy would represent a threat to her life or health. Abortions could be performed in state and private hospitals and clinics. Abortion was allowed for all women victims of rape or incest. Women needed to report the sexual violence to the police. No woman would be permitted to have more than one abortion. All women were advised about contraceptive measures before and after their abortion.
The delegation reminded the Committee of the various reports that Jamaica had submitted to a wide range of treaty bodies. It was explained that the Covenant could not be directly invoked in domestic courts in Jamaica. There were no citations on the Covenant from Jamaican courts to report. Under common law, there was a presumption of compatibility between ratified international instruments and domestic law. Parliament could not frame laws which would contradict the State’s international obligations, stressed the delegation. Jamaica took its treaty obligations very carefully.
Questions by Experts
An Expert raised the issue of torture and wanted to know why it was not defined as a separate crime. The Criminal Act did not include a list of offences which could qualify as torture, he noted. If the State was not able to collect and analyse the number of complaints related to torture and ill-treatment, it would be difficult to assess how effective investigations into such complaints were. Were police offices open to the Public Defender’s inquiries and to what degree did they cooperate, the Expert asked.
Turning to the backlog of cases in courts, a question was asked on the lack of staffing and steps taken to correct that problem. Was there a plan to provide individuals with legal assistance if they wished to bring forward constitutional complaints?
There were reportedly one hundred police officers currently facing trials. At what stage were those cases?
The Expert also asked about efforts taken to eliminate the possibility of incarcerating children. Could some details on the expected timeline be provided? Most children who were incarcerated had a past history of abuse, including sexual abuse, and ought to be provided with assistance, including therapeutic assistance. Could children still be kept in prison for a long time, sometimes until they reached the age of majority?
Another Expert asked for details about the guidelines to combat human trafficking. How could victims be protected under those guidelines?
Speaking about refugees, the Expert asked the delegation to provide details on Jamaican laws providing protection to refugees. What was the number of persons seeking refugee status? The delegation had informed that only 33 had been given such status in the past three years. An explanation was also sought on Jamaica’s approach to statelessness. How many unaccompanied children had been referred to the Child Development Agency?
The status of Maroons and Rastafarians was also brought up by the Expert.
An Expert praised the progress made by Jamaica in several facilities where children were locked up, and asked for plans to expand such efforts to all facilities holding children. Would the State party consider implementing a legal provision prohibiting the incarceration of children with adults? The State had accepted liability for all the cases in the Armadale Juvenile Correction Centre. While that position was laudable, concrete numbers were sought on what was being done.
Was corporal punishment still being used against students and what measures were being taken to prevent further use of corporal punishment in homes, schools and other settings? It should be seen as a violation of children’s rights rather than simply a cultural practice. The Expert asked if the Government was planning to legally amend the act to formally prohibit it.
Another Expert said that if the presumption of compatibility was so natural, it would be expected that the Covenant would have been invoked in courts. Efforts ought to be made to promote awareness of the Covenant in Jamaica.
While the Committee took note of the steps taken to improve access to information, it had been alleged that access officers habitually violated related provisions, including timeliness. The State party was engaged in the review of the Access to Information Act, but that review had been reportedly languishing in a parliamentary committee for years. When would the procedures be completed, asked the Expert.
How did the State party intend to regulate civil society organizations without restricting their freedoms of association and assembly? Would human rights non-governmental organizations be able to acquire a charitable status?
The delegation was asked why Jamaica had not accepted a Universal Periodic Review recommendation on human rights defenders. It was reported that no acts of assault against those defenders were currently under investigation, and the delegation was requested to comment.
Turning to the issue of legal abortion, an Expert noted that no legislation was in place to allow for an abortion if the pregnancy would lead to the death of a woman or be detrimental to her health. Could the delegation clarify?
Replies by the Delegation
The delegation said it could not provide any further information on the cases of police officers which were currently with the Public Defender. Information would be provided in writing subsequently. A mechanism had been established between the Public Defender and the police, which had been working positively.
The delegation understood the Committee’s concern regarding the definition of the crime of torture. All those matters had to be further reflected upon, and the delegation was not able to say that legislation criminalizing torture was being put forward at this time. Jamaica’s responses in the context of the Universal Periodic Review were relevant.
The matter of protection of victims of human trafficking was covered by standard operation procedures. They were rescued by the police and provided with shelter, health care, counselling services and clothing and meals. Regardless of whether those victims were Jamaicans or foreigners, the care provided was the same. An example was given of a recent rescue of dozens of Honduran boys from a smuggling boat.
On the backlog in the courts, a delegate explained that Jamaica had embarked on a huge reform agenda. A very large part of the agenda related to the backlog, and it dealt with processes and not only with the increase of the number of judges; a multi-level strategy was being employed. Video and live-link evidence could now be presented in courts, which helped address the fear factor. Jury trials, which plagued Jamaica for a while, had been amended in order to speed up the process.
It should be recognized that there were different types of coroner services. A special coroner was designed to look into actions of State agents. The Coroners Act provided for parish judges, formerly known as resident magistrates, and a special coroner.
The delegation said that it used cautionary language regarding the schedule of the legislature and it could not foresee the pace of specific steps ahead.
The authorities intended to take a regional approach in keeping children in child-friendly and safe facilities. Jamaica wanted to establish facilities of an appropriate standard and ensure their accessibility. The context in which different actors approached different commitments ought to be taken into consideration. Children were not kept in lockups except in extreme cases. The guidelines stated that if a child was not charged within 24 hours, he or she should be released to their parents or guardians. Every child needed to have representation. The development of child policies had been helped with Jamaica’s international partners, including the United Nations Children’s Fund.
The Government was committed to combatting corporal punishment in schools, stressed the delegation. A specific timeline could not be provided at the moment.
The Access to Information Act provided for the punishment of violators, who could be sent to prison for up to six months and/or fined up to 500,000 Jamaican dollars.
Information on persons who had sought refugee status would be provided in writing subsequently, and the same would be done on unaccompanied minors.
The human rights defenders issue had been addressed in the Universal Periodic Review process. The delegation was not aware of any defamation issues; killings of human rights defenders or any Jamaicans would be dealt with through regular channels. The delegation did not know of any such killings.
Specific rules on non-governmental organizations were promulgated by the Ministry of Finance. Charitable entities needed to satisfy certain conditions. Legislation did not preclude any groups from registering charities.
Jamaica had a Maroon community which was a crucially important part of its society. There were provisions for particular dispensation of marijuana to Rastafarians, who used it for religious practices.
There was no legislation on abortion which would translate the older policies into current-day laws, confirmed the delegation.
Follow-up Questions by Experts
An Expert wanted to know about the exact criteria on the establishment of charitable organizations. The delegation was asked to provide more details in other regards as well.
There were reportedly three main problems regarding the Maroons: registration, borders and underground resources in Maroon areas.
Suspected homicides were investigated by coroners, said an Expert. Did the judges decide both the cause of death and the criminal responsibility? To what extent was that system effectively functioning, given the backlog of cases?
If legal aid expanded, it expanded gradually, noted the Expert. To what extent was the State trying to improve the system? If the lack of judges was a problem, what was the trend?
There were reports that defenders of lesbian, gay, bisexual and transgender individuals were harassed and violated. The delegation was asked to comment.
Replies by the Delegation
The delegation said that it would attach the legislation on charitable organizations to the written replies to the Committee within 48 hours. The Committee should specify its questions in order to receive precise, concrete responses.
Regarding the backlog in the courts, the delegation explained that the law on coroners included functions conducted by parish judges. The parish judge could preside over the parish court and also act as a coroner. The State party admitted challenges when it came to resources and accepted that progress would be gradual.
The appointment of judges was a strict prerogative of the Judicial Services Commission, over which the executive branch exercised no authority. There was no need for legislative amendments in that regard. Jamaica was considering bringing back retired judges to help resolve the issue of the backlog.
On the issue of the Maroons, the delegation asked the Expert to provide further information on the nature of the disputes he had referred to earlier.
Follow-up Question from Experts
An Expert said that the
Jamaicans for Justice had applied for a charitable status, but their application had been denied because their purpose was not considered charitable, but rather political.
Were Maroons recognized as legal persons in Jamaica, and what was Jamaica’s position regarding their land rights? Were their traditional lands demarcated? How about their resources?
Reports indicated that sometimes the unwillingness of the police forces to cooperate affected the implementation of the coroners’ decisions.
An Expert brought up the issue of marital rape in Jamaica’s legislation. What measures had been taken, or were being planned, to amend the Sexual Offences Act?
Replies by the Delegation
The delegation said that charitable purposes included the relief of poverty, advancement of education, religion, health, good citizenship, arts, science, amateur sports, human rights, conflict resolution or reconciliation, the promotion of racial harmony, the relief of those in need because of youth, old age or other condition, the advancement of animal welfare, etc.
The Maroon communities and the United Kingdom had signed a historic treaty, said the delegation; recognition of those rights was an established approach. The Maroons were respected in Jamaica, and the Nanny of the Maroons was a national heroine in Jamaica.
The Sexual Offences Act was before the Joint Select Committee, and the delegation was hence unable to describe its content.
Approximately 70 per cent of murders in Jamaica were caused by gang infighting in cities. Some were driven by international narcotic trade. The murders were generally directed at identifiable victims. Violent crimes, including murders, were down in 2016 as compared to 2015. Jamaica recognized the seriousness of the challenge and was grappling with it.
Responding to an earlier question, the delegation said that the police’s diversity policy had made strides in the country. All cases of domestic violence and abuse were dealt with under the police forces special training programme. In their interactions, the police force members were guided by the diversity policy.
All complaints of citizens being discriminated against had their recourse in the courts. The national HIV/AIDS policy aimed to protect HIV-infected persons from discrimination.
The Gender Policy was supposed to be evaluated before the end of March 2017. Jamaica currently had four female Ministers, including the country’s first female Foreign Minister. The statistics showed that maternal mortality had gone down in Jamaica in recent years. The delegation did not have statistics on abortion available at this stage. Contraceptives were available at public health centres. The “He For She” campaign had been launched in July 2016, so its assessment could only be provided at a later time. The Government was now in a dialogue with partners to identify suitable locations for shelters for victims of domestic violence.
The budget of the Independent Commission of Investigations had increased compared to the year before, informed the delegation. A number of plans were in existence on expanding the prison facilities. The issue of pre-trial detention was being addressed by the Ministry of Justice.
WAYNE MCCOOK, Ambassador and Permanent Representative of Jamaica to the United Nations Office at Geneva, thanked the Committee for its conduct of the review. It was understood that States parties had an obligation to report on the fulfilment of their obligations to their citizens first. Jamaica was a small country and rules mattered. Less than a year after its independence, Jamaica had made an appeal to ensure universal human rights; the same values underpinned the country’s approach today.
YADH BEN ACHOUR, Chairperson of the Meeting, said that the Committee would now draft concluding observations. It was expecting written replies from the delegation, after it had consulted with the capital. Specific detailed data and information were expected. The Government of Jamaica had the best of intentions when it came to the protection of human rights, said Mr. Ben Achour. Policies were about intentions, but legislation was about walking the talk and actually acting. The good policy intentions ought to be put into practice. Mr. Ben Achour’s personal impression was that there was too wide of a gap between intentions and putting them into laws
For use of the information media; not an official record