Islands of power: Horizontal rights application under the Jamaican Charter of Fundamental Rights and Freedoms

Abstract This article analyzes the application of horizontal rights under the 2011 Jamaican Charter of Fundamental Rights and Freedoms. It seeks to contribute both to the Jamaican debate on horizontal rights application and to the ongoing theoretical and comparative constitutional law debates on horizontality, and to bring both into conversation with each other. The 2011 Charter introduced constitutional horizontality for the first time into Jamaican constitutional law. Informed by the language of Section 8(2) of the South African Constitution, Section 13(5) of the Charter stipulated that the Bill of Rights would apply horizontally where, and to the extent that, it is “applicable,” and left the question of applicability to the courts to resolve. In the succeeding years, the Jamaican courts have interpreted Section 13(5) in four major cases. This article argues that while these judgments are detailed and closely reasoned, they have left certain important gaps in the doctrine. In particular, the cases have—so far—failed to adequately address the “transplant” of the rights framework from the vertical to the horizontal context, and a principled basis for limiting the exercise of horizontality. This article proposes an “institutional approach to horizontality,” which is not only consistent with the founding principles of the 2011 Charter, but also resolves the transplant problem and the limitation problem. This article suggests that the institutional approach is best suited to addressing the structural disparities of power that exist within the private sphere, and which horizontality is meant to tackle. It therefore commends the institutional approach to the Jamaican courts, as well as to the burgeoning judicial engagement with horizontal rights and the question of power across the globe.