By Claudette Joseph
In addition to the matters discussed in Part 1 of this article, the Rights and Freedoms Bill proposes to insert a new section protecting Intellectual Property rights as an enforceable fundamental right.
Intellectual property rights are regarded as private, civil rights that are enforced under specific private laws. There are adequate, modernised laws on the books that allow citizens to sue either each other or the State if their IP rights are breached.
Added to that, section 16(2) of the Constitution provides that the court may decline to exercise its powers under the Constitution if it is satisfied that adequate means of redress for alleged breaches are or have been available to the person complaining. Consequently, if this Bill succeeds, it is unlikely that many persons will succeed in enforcing this provision.
This section also seeks to impose an enforceable obligation on the State to “support, promote and protect the intellectual property rights” of the people. This provision is vague in language and silent on what will constitute a breach or failure by the State to meet this obligation.
The proposed expansion of Section 10 to provide for freedom of expression to include freedom of the press and free media will not result in any practical change or actual improvement in the enjoyment of this fundamental right because it is already understood to include the right to freedom of the press. The courts have repeatedly ruled on this.
The Privy Council so held, in the case of the Attorney General of Antigua v Antigua Times Ltd. where it was interpreting the Antigua Constitution, which has an identical provision as ours. Indeed, Parliament was fully aware of this fact when it passed the offending sections 6 and 16 of the Electronic Crimes Act in 2014. In this regard, no constitutional change is needed.
What is needed is for the State to respect and obey the Constitution at all times and the citizens to remain ever vigilant in making sure that their guaranteed rights and freedoms are not breached.
Section 11 of the Constitution guarantees all persons in Grenada the right to freedom of association and assembly including the right to join and participate in the activities of organisations such as trade unions. The right to freedom of assembly and association includes the right to be part of and to promote the common interests and objects of the organisation of which the person is a member.
The Bill proposes to expressly provide for that right to be expanded to include the right to openly assemble with and join political parties.
At present public officers cannot publicly promote or actively participate in the public activities of political parties, although there is no restriction on them doing so privately. Section 57 of the Public Service Commission Rules provides that a public officer shall not “call” or “actively participate” in any public meeting to question Government’s action.
Given that the very nature of political parties is that they challenge the actions of government once in opposition, it means that public officers ought not to publicly and actively participate in the activities of political parties.
Public officers are to be independent and impartial in performing their functions, working for the advancement of the country no matter which political party is in office. The Constitution recognises the need for this independence in section 11(2)(c) which permits Parliament to pass laws that impose such restrictions on public officers. Section 57 of the PSC Rules is one such restriction.
If by specifically inserting the words “political parties” in section 11, the intention is to make section 57 of the PSC rules unconstitutional, I submit that this is quite an undesirable proposal that should not be supported. Such a change can potentially expose public officers to victimisation by politicians, open the door for politicians to manoeuvre promotions within the service based on political affiliation rather than merit and appoint party hacks to key positions including on the Public Service Commission itself. All of this will in turn help with gradual systemic erosion.
There is a proposal to insert a new section 13A – “A child is a child” which will provide constitutional protection against discrimination for children born out of wedlock. This change is not necessary for the same reasons that the Intellectual Property provisions are not. Besides, it is not clear what existing societal deficiency this proposal is intended to remedy.
The new section 13B, the right of every child to primary/secondary education up to age 16; and section 13 C, the right to vote, are both welcome expansions of the rights and freedoms chapter. All of the above proposed changes will be enforceable rights under section 16 of the Constitution.
Directive Principles of State Policy: Chapter 1A – sections 18A to 18M.
The Bill proposes to include a new Chapter 1A titled: Directive Principles of State Policy.
These are philosophical statements aimed at promoting equity and justice, and enhancing economic and foreign policies. Directive Principles are to guide the Executive (Cabinet) in the formation of policies and Parliament in the framing of laws.
None of the Directive Principles will be enforceable but Parliament may pass laws to make any of them so – Section 18N (2).
These Directive Principles of State Policy are:
(1) the duty of the State to protect the natural resources;
(2) the duty of the State to protect the environment;
(3) the right of the people to a healthy environment;
(4) protection against climate change;
(5) to promote preparedness for natural disasters;
(6) protection of children against harmful servitude, physical mental or sexual abuse and to consult with children, depending on their age and mental development, when dealing with matters pertaining to their welfare;
(7) the right of persons who are physically, visually, aurally or mentally challenged, not to be discriminated against based on their disability;
(8) the right to have a family and to engage in family life;
(9) subject to available resources, the duty of the State to aim to enhance the supply of food water and health services;
(10) the right to expressions of culture;
(11) the right of access to information regarding the State;
(12) that Government should strive to act in a fiscally responsible manner so as not to unduly burden the people financially;
(13) that Government endeavour to incorporate international treaties to which Grenada is signatory into local laws where appropriate.
Many will welcome this inclusion, but others will be disappointed that at least some are not proposed to be made immediately enforceable, especially given that Cabinet rejected the proposal for the right to recall misbehaving MPs and further, that in our recent history there have been several instances that demonstrate the need for more controls, checks and balances in this regard.
Recent examples include: the transfer of all of Grenada’s natural oil and gas resources to a Russian controlled company in 2007 with no benefits coming to the people; the continued development of the Grand Anse Bay area despite an OAS study that indicated that further development of the area could be harmful to the environment there and; Government giving sovereign guarantees to dubious “investors” who drew the money and disappeared, resulting in a ballooning of the national debt.
The plain truth is that the Directive Principles will only be useful in the context of a Government that has the highest regard for the Constitution. If this Bill passes, the citizen can take no legal action to prevent Government from acting contrary to any of these principles.
Part 3 of this article will examine Chapter 1B, Gender Equality.
(Claudette Joseph is a local attorney-at-law who is attached to Amicus Attorneys)