‘The Rights to Equality and Non-Discrimination and the Jamaican Charter of Fundamental Rights and Freedoms’
[2012] West Indian Law Journal 126
Posted: 30 Jul 2016
Date Written: July 29, 2016
Abstract
Much of the evolution in constitutional rights in the Commonwealth Caribbean has resulted from death penalty cases litigated on the rights to life and to freedom from inhuman and degrading treatment or punishment. There have been comparatively few developments in the field of constitutional rights to equality and non-discrimination. However, recent events in the region may open the door for increased discussion of the content of our equality and non-discrimination provisions and their potential application to current debates on the treatment of specific groups within Caribbean society. These developments include legislative reforms that affect the scope of the constitutional protection of equality. This article will focus on one such legislative reform: the Jamaican Charter of Fundamental Rights and Freedoms, 2011, which amended Chapter III of the Jamaican Constitution by replacing the original Bill of Rights with a new catalogue of rights. The other set of developments that help to frame the debate around constitutional equality guarantees is litigation that requires the court to measure ordinary legislation against the Constitution.
As equality and non-discrimination are complicated concepts, this article describes four potential conceptions of equality and non-discrimination and conducts the examination of the evolution of the equality and non-discrimination in Jamaican constitutional law within that framework. It shows that, ultimately, the Charter’s provisions on equality reflect the society’s views on the value and worth of distinct segments of the Jamaican populace. This has produced some positive developments for groups such as women and children but has worked to the detriment of persons who identify as lesbian, gay, bisexual and transgendered (LGBT). What emerges is a protection of equality which attempts to be both progressive and repressive, with Janus-like provisions, looking both backward and forward.
Keywords: equality; non-discrimination; gay rights; LGBT;Jamaican Charter of Fundamental Rights and Freedoms, 2011; Caribbean constitutional law
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