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Amend constitution to protect people living with HIV

Wednesday, September 20, 2017

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The February 25, 2016 General Election was preceded by several conversations and speeches about the importance of and need for constitutional reform. Hot topics included the removal of The Queen as our head of State, replacing the Privy Council with the Caribbean Court of Justice as the final appellate court, and imposing fixed term limits for parliamentarians. Even the buggery law and its potential removal was somehow lumped with these grand constitutional matters. The latter was particularly odd, since the buggery law can be easily addressed through a simple majority vote in Parliament, whereas every other issue would necessitate constitutionally mandated procedures for amendments, but I digress.

What was missing from the conversation was the need to review the Charter of Fundamental Rights and Freedoms which was passed in 2011. The charter was equally a positive step for general human rights protection and a step backwards as it relates to the rights of vulnerable groups. One such vulnerable group was the community of people living with HIV. The constitutional reform process completely ignored the need to create an enabling human rights framework for those Jamaicans who faced severe stigma and discrimination because of their HIV status. It also failed to address the need to give constitutional eminence to social, economic and cultural rights which have largely been ignored in local conversations about human rights. The result is that the rights of people living with HIV can continue to be flouted with impunity.

Let's examine closely the changes made to the charter. Section 24 of the 1962 Bill of Rights prohibited direct and indirect discrimination in law and by public bodies on the basis of very limited grounds. Discrimination on the basis of health status was not included and so HIV, which did not exist at the time, was naturally absent. The charter expands this right into three new provisions which guarantee equality and non-discrimination.

Section 13(3)(g) broadly guarantees the right to equality before the law without an exclusive list of grounds or forms of discrimination. Section 13(3)(h) similarly guarantees the right to equitable and humane treatment by a public authority in the exercise of its function. There is no exclusive list here either. Presumably, people living with HIV should not be discriminated against by law or by the actions of public officials, including health care workers. If this were to happen, this would be a breach of constitutional rights. This is a significant step forward.

Section 13(3)(i) guarantees a broad right to not be discriminated against. This right is not limited to the actions of State actors. In other words, companies and private citizens can be legitimately sued for violating the rights of fellow Jamaicans. The problem here is that this subsection does have an exclusive list which does not prohibit discrimination on the basis of health status. This means that landlords can refuse to rent to people living with HIV, companies can refuse to employ them, and service providers can refuse to do business with them. This is a significant omission, as oftentimes discrimination is mostly felt at the hands of private citizens whose actions aren't always governed by a bulwark of policy and staff orders.

Another significant omission is the failure to provide for the right to health in the charter, which is even more shocking given that the charter was passed in the same year that user fees at public hospitals were largely removed. In 1975, the Jamaican Government ratified the International Covenant on Economic, Social and Cultural Rights, which places an obligation on the State to secure the right of each individual to enjoy the highest attainable standard of physical and mental health. And yet, somehow, we allowed 2011 to pass without incorporating this right into our national constitutional framework.

Rather than guaranteeing “free” health care, the right to health care acknowledges that the Government has a responsibility to provide accessible, available, and non-discriminatory health care services. It mandates them to take issues such as stock-outs, understaffing, and poor treatment of clients seriously. It requires them to establish and/or strengthen existing redress mechanisms to ensure that each Jamaican is able to access health care without undue hardship.

By failing to constitutionally secure that right, the Government is allowed to use health care to play political football, rather than treat it with the constitutional eminence it deserves. Undoubtedly those most affected by this omission are vulnerable groups such as people living with HIV, who continue to face challenges related to stigma and discrimination when accessing health care and a weak system for redress.

It's full time the rights of all Jamaicans take centre stage in these political conversations about the constitution. And it's full time that all Jamaicans, including people living with HIV, have their rights effectively respected, protected and fulfilled.

Make the changes!

Jumoke Patrick is the executive director at the Jamaican Network of Seropositives (JN+). Send feedback to the Observer, @JNSero or jnplusexecutivedirector@gmail.com.

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