Is it necessary to abridge individual Human Rights in the fight against crime?

By Sophia M. Paz and Mikhail A.C. Jackson    

Introduction

As human rights have developed over centuries, so have its several interpretations in society, but the overall theme has always remained the same: they are rights inherent to all human beings. Based on this understanding, by definition, human rights cannot be taken away, altered, amended or abridged because they are innate and fundamental to every human being.  However, we do not live in a utopian society where an individual’s human rights can exist absolutely sans limitations, indicating that human rights must be approached as a social construct.  This does not necessarily dilute their significance or make them less real because the effects of a social construct are often as real as the physical objects before us.  It simply facilitates and initiates the debate as to the appropriate parameters of an individual’s human rights it is helpful.   It is after all deemed a necessity to put limitations on an individual’s human rights, as is apparent in our respective Constitutions and legislation.

Human rights are expressed in the absolute form through the Constitution.  The Judiciary plays the role of devising limitations and principles for restricting these fundamental rights as it suits the “greater good” of society.   However, as a result of rampant crime, many states, through our legislative bodies, have arrived at the conclusion that an individual’s human rights can be “edited” as it suits our societal needs despite the fact that Constitutional provisions and customary International laws suggest that limitations must only be exercised where it is absolutely necessary, such as in states of emergency, maintain public order, upholding public interest, etc.  In addition, according to Ian Boyne, “while rights [are inherent] in individuals, it is the state as an institution which has the responsibility to balance the interests and rights of all of us. At least this is the theory in class society.”

In seeking a solution for the incidence of crime, within the context of human rights, is the right question truly “is it necessary to abridge them”?  Where the question is taken literally, it would be answered in the negative because, simply put, the “end justifies the means” argument is old and of no utility.  However, we propose that the relationship between human rights and crime is entirely different, rending that question inappropriate for 3 reasons: first, it indicates a lack of understanding of the complexities and intricacies of human rights; second it undermines the fact that to solve a problem, first the causes need to be determined and analyzed; third and most importantly, we intend to put forth the argument that the abridgement of human rights already exists long before it is put on a piece of legislation.  Putting it into legislation is not only unconstitutional and contrary to the principles enshrined in customary international law, it only serves to compounds the problem.

The abridgment of human rights may very well be the primary cause of crime and the very fact that people operate under the misguided believe that abridging individual human rights in the name of fighting crime is a reasonable and just crusade indicates that human rights is not understood for the complex concept that it is.  Further, it suggests that solving crime can be done by treating the symptoms and not the disease.

The problems that arise from crime are a central issue in public debate and important public policy concerns most Caribbean countries. This problem is perhaps most acute in Jamaica due to its high rate of violent crime.   Therefore, Jamaica will be used in this paper for illustrative purposes.

Putting Crime into Context

Crime is a serious socio-economic problem that affects all states. Undoubtedly, the question that often follows is whether we can find some justification for abridging of an individual’s human rights, such as punitively punishing criminals by depriving them of their liberty and placing them in prison, in order to fight against crime. However, it would perhaps be more instructive to explore the potential causes of crime.

What are the causes of crime in Jamaica?  According to a report of the National Committee on Crime and Violence, among the factors giving rise to crime and violence in Jamaica are the following: destabilized family structure (including poor parenting), decline in values and attitudes across the society, urban drift, economic instability (including high unemployment). inequality in income distribution, drug culture, high level of illiteracy, political tribalism, emergence of non-traditional/parallel leadership within communities, ineffectual, citizen-unfriendly policing, negative perceptions towards access to security and Justice (particularly in poor communities), ineffectiveness of channels of communication between the community and the police, high availability of firearms and other weapons, lack of community empowerment (to address/ameliorate problems before they escalate), weak financial status of civil society organizations which limits pre-emptive and response capability, corruption.   All these factors constitute the ingredients that create the problem child we call crime.

Though not an exhausting list, the Report highlights the key issues that form part of the problem.  This begs the questions, what causes these issues to occur in Jamaican society?  Perhaps if human rights would come first, some of these issues would not occur in such extreme abundance.  For example, “citizen-unfriendly policing” is mentioned in the report as a contributing “cause” of crime.  According to Jamaicans for Justice, the Jamaica Constabulary Force has adopted hard policing and the various formations of special squads to deal with crime.  These methods undermine common humanity, decency and are a violation of human rights.

In addition, using Draconian approaches in the fight against crime do not solve the medium to long term problem of crime in Jamaica but will have only short term solutions.   Besides affecting people directly, it also has had adverse effects on the country’s prospects for Tourism, Investment and other important aspects of the country’s economic development.   To site another example of a contributing “cause” of crime in the report of the National Committee, is “economic instability.”   This is a clear sign that these methods of “abridging” a person’s individual rights form part of a cycle that affect all aspects of a society and only propels crime forward.

The Role of Human Rights

Human Rights have often been dismissed as a lofty idea with no real bearings.  There is a widespread indifference to human rights in society, even in Jamaica.  This is often because people are not equipped with the necessary knowledge and tools to understand them.  As a matter of common sense and dignity, every member of society should have, at the very least, a working foundation of what human rights entail.   They should know that human rights form the basis of justice, freedom and peace within the world and because of this it should be respected and adhered to nationally and internationally.  According to Nickel, human rights can be divided into six categories: protecting people against murder, torture; Due Process Rights (protecting people against abuses of the legal system); Liberty Rights (protecting freedoms such as religion, speech); Political Rights (protecting political participation); Equality Rights (protecting equally with regard to citizenship, the law and nondiscrimination); Social Rights (protecting access to education, healthcare).

Unfortunately, this is not always the case.  Most of the time, the very little general members of the community know about human rights are learned where there is an apparent breach of a human right where a criminal is involved.  This often leads to people being misinformed or misguided who in turn believe that human rights exist simply to defend criminality, as it is often the only time in which human rights seem to arise.  There is also fear of impunity and general apathy.

However, knowledge of what human rights entail is necessary.  If people don’t know what their rights are and do not know how to exercise them, that ipso facto means that their rights are outright being denied to them.  To have rights in principle with no real, practical modes of exercising them is a denial of the right itself because it means that the rights exist in form but not in substance.   Where people are taught to understand human right and the way, in which it affects their daily lives, so will the approach towards human rights change, lending itself to be used in a more efficacious manner.

This is necessary because the entire purpose of human rights law is to promote and protect fundamental human rights.  In order to protect them, people have to know what they are and in order to promote them – enhancing, developing, encouraging – in addition to knowing what it is, people also have to understand them.  This means that the first step has to be education in order to truly address the actual causes of crime.

Bridging the Gap

Crime is invariably linked with human rights because of its causes as well as the effects of its subsequent outcomes as has been explained.    Crime is prevalent in those who are uneducated and disenfranchised by society.  This means that already basic human rights are being denied to people ipso facto because they already do not know what their rights are or how to uphold them.  Jamaica has recently passed a new Bail Act which seeks to significantly limit an individual’s human rights, as a method of preventing or decreasing the instances of crime.  One has to consider who is actually mostly affected by these changes in order to see the link more clearly.  Indeed, one must consider the effect of upholding human rights of an individual vis-à-vis the responsibility of the State to protect society, but infringing on an individual’s human rights in the name of “fighting crime” is not necessary to do this.

Recommendations

Social and economic solutions

Case study after case study  in many countries with differing socio-economic circumstances have shown that passing Draconian laws simply do not work.  It may or may not solve one or two crimes in isolation but when one is looking for a solution, it should be considered from the standpoint of long term benefits.  Indeed, no country is the same and there are myriad circumstances that cultivate the intricate mix that produces crime in a country.  However, there are some common factors that always remain constant.  Therefore, initiatives that target risk factors would perhaps be a better approach.  Approaches that fail to take this into account are like treating the symptoms instead of the disease.

Legal Solutions

Crime is a socio-economic problem, which often has political undertones to it.  And it becomes a legal issue when society is threatened.  For this reason the Judiciary exercises their power to place limitations.  However, what governs social issues, economic issues and political issues? Among other things, the primary things to consider are: the way people live, the way they are treated and the way people’s opinions are formed. This is why the outlook on human rights has to change. Instead of passing laws that aim to circumvent crime at the “last hour”, if any legislation should be passed, it should address social, economic and political conditions.

The government has also sought to compound the issue of heavy-handed ‘crime-fighting’ with the proposed legislative curtailment of rights such as arbitrary and prolonged detention. What we should be doing is taking action targeted at prevention of crime, enforcement of existing laws, increasing the investigative and intelligence gathering of the police, meaningful strengthening of community policing initiatives and the upholding of the rule of law by all.

Further, there is a clear need to engage Human Rights lawyers and Human Rights organizations with process of reform while allowing them to remain independent, which is required for objectivity.  Coupled with this is a need to defend the principles of human rights while building public support for human rights.

Conclusion

Crime is a socio-economic problem, which means that changes need to be made from the ground up.  Solutions should be geared towards social and economic issues.  Starting from the position of legislation is working backwards because it attempts to address the issues from the surface level. Instead of taking steps to modify legislation that in effect further abridges human rights and compounds the issue, the exact opposite needs to be done in order to effectively fight crime.  If legislation is used to further impinge on rights, it will only increase the prevalence of crime.  It is Draconian in its approach. It is short sighted.  It is not sustainable.

Bridging the gap in order to enable civil society on the basis of its own self-interest and participation is essential.  Further, strategies to fight crime and violence must focus on people (in order words, be mindful of their human rights); on rebuilding community structures that will allow the deployment of new policies and programs, and on rebuilding the moral authority of political leadership, which must take and pursue tough and sometimes unpopular decisions.

There must also be a proper assessment of the problems and challenges in the given community in order to develop the most appropriate strategies for improving public security.  Jamaica is obviously a very unique example because of its culture and socio-economic makeup, which inevitably means that a lot of work needs to be accomplished, but it is possible.

Unless there is a bridging of the gap in order to enable civil society, which includes a better understanding of human rights and the role it plays, crime is going to continue to escalate and continue to threaten us with civil unrest.   The better approach is to educate the people in understanding their human rights because it will serve to empower them, enlighten them and show them that they belong to the society, regardless of their socio-economic status.  This approach will fight crime slowly but it will produce more long term benefits that will be sustainable.

Sophia M. Paz and Mikhail A.C. Jackson are students at the Norman Manley Law School. This article was submitted to the Human Rights Essay writing competition held in the 2011-2012 academic year. The article won second place.

Advertisements

Share your opinion

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s