A note on the environment and the charter of fundamental rights and freedoms

By Mrs. Arlene Harrison Henry

After many years of gestation the CHARTER OF FUNDAMENTAL RIGHTS AND FREEDOMS was finally passed by the Jamaican Parliament replacing Chapter 3 of the 1962 Constitution. There is no doubt that the Charter of Fundamental Rights and Freedoms expands the list of constitutionally protected human rights.

Added to the list of rights is the right to enjoy a healthy and productive environment expressed at section 13 (3)(l) as:

‘the right  to enjoy a healthy and productive environment free from the threat of injury or damage from environmental abuse and degradation of the ecological heritage;’

The frequency of fierce and catastrophic events around the world some near to home and some far off has forced us in an awareness of environmental issues and the need to protect the environment. The elevation of the right to ‘a healthy and productive’ environment to a constitutionally protected right it seems was born out of evident necessity to live in harmony with nature or suffer the devastating consequences.

The inclusion of the ‘right to enjoy a healthy and productive environment’ in the constitution is an extremely important step towards achieving environmental protection in Jamaica. The inclusion of the provision in the Charter elevates the importance of the environmental protection to the level of a human right.  It puts a duty on the state and agencies of the state acting under ordinary legislation to meet a higher standard as set out in the Charter in making policy and decisions and the like. Constitutional protection helps to coordinate protection mechanisms and it gives the Jamaican public the ability to hold the Government and potentially others accountable who act contrary to the provisions of the Charter.

And what protection does the charter offer?

The right as expressed in the Charter of Fundamental Rights and Freedom offers persons in Jamaica two main entitlements:

the right to enjoy a healthy and productive environment that is free from

a)     the threat of injury or damage from environmental abuse and:
b)    degradation of ecological heritage

The right to enjoy a healthy and productive environment is a positive entitlement. This seems to suggest that the right is concerned with more than just overt environmental threats but seem to mean that people are entitled to a high standard of environmental integrity.

The first aspect of the right seems to be more individual in nature in that a person is protected from the threat of injury, injury and damage from environmental abuse. An example of this right being infringed would be injury caused from air pollution. The recent fires at the Riverton City Dump come to mind.   It is important to take note that Constitutional protection is extended to the ‘threat’ of ‘injury’ or ‘damage.’ One does not have to await actual injury to seek protection under this right as protection is offered in the face of a threat of ‘injury’ or ‘damage.’ The right is preventive in nature. Where potential injury or damage can be shown protection under this provision of the Charter appears to be available. It is difficult to determine how broadly this right will be interpreted by the Courts.

The second aspect of the right has wide ranging potential for environmental protection. The right to be free from ‘degradation of ecological heritage’ has implications for conservation and protective measures. The aspect of the provision could be especially useful in challenging legislation and decisions that do not adequately protect and conserve Jamaica’s ecological resources and there is no requirement to prove damage.

Whose actions does the Charter target?

Traditionally most constitutions are concerned with the interaction between the state and individuals and not interactions between private parties. In most cases constitutional law is relied upon to protect individuals from the state and agents of the state. The Charter states unambiguously that its provisions are applicable to all law and binds the legislature, the executive and all public bodies.

In addition to this protection the Charter contains an exciting provision which has the potential of holding private parties accountable for violation of Charter rights.

It is stated that:

‘A provision of this Chapter binds natural or juristic person if, and to the extent that. It is applicable, taking account of the nature of the right and the nature of the duty imposed by that right’

A very similar provision is found in the South African Constitution. It is fitting that such a provision is contained in our Charter as many environmental problems come about as a result of private action. Time will tell how our courts view this provision.

Mrs. Arlene Harrison Henry is an Attorney-at-Law practicing in Jamaica. She is the Chairperson of the Independent Jamaican Council for Human Rights (1998) Ltd. and former president of the Jamaican Bar Association.

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