Editorial | The Bain ruling, evangelicals and Rev Roper
Jamaica's Supreme Court made a historic ruling last week in Brendan Bain's case which should be cause for thoughtful reflection by Jamaica's evangelical churches in their current quarrel with the Rev Garnett Roper.
By way of background, Professor Bain is a medical doctor who used to run the University of the West Indies' (UWI) Caribbean HIV/AIDS Regional Training (CHART) Network initiative, until he was fired in May 2014 amid a controversy over his decision to provide testimony on behalf of a group of Belizean churches that opposed efforts to have the country's law against buggery declared unconstitutional. The UWI argued that it dismissed Prof Bain because he had lost the confidence of the constituencies with which he had to work in a programme, part of whose mandate was the elimination of discrimination and stigma against people living with HIV/AIDS and whose strategy included taking a human-rights approach to the sexual orientation of individuals.
In its ruling, the major part of which was written by Justice Paulette Williams, the court's three-member panel held that the university did not breach the terms of Prof Bain's contract by firing him and determined that he was owed only J$4.27 million, to which he was entitled in lieu of three months' notice. Justice Williams also dismissed Prof Bain's claim that he was defamed in a statement published by the university about his dismissal.
But rejecting that the UWI substantiated its argument for Prof Bain's dismissal, and concluding that it flowed directly from the expert testimony he gave in Belize, Justice Williams declared:
"Having ... found that the termination of his contract was due to his giving the expert report, I am satisfied that in terminating his contract for that reason, the defendant breached the claimant's right to freedom of expression" guaranteed at Section 13 (3) (c) in the Charter of Fundamental Rights and Freedoms of the Jamaica Constitution.
The court, however, awarded Prof Bain no compensation for this breach. It said the declaration of itself was sufficient.
The ruling, nonetheless, is a landmark. It is the first time that a case has been pleaded - and the court has ruled - in which someone sought to assert a fundamental constitutional right against its infringement by a juristic person, or a body that is a not a natural person, but which is recognised in law as having rights and obligations.
Opened door to testing
Until the 2011 constitutional amendment obligating "all persons" to "respect and uphold the rights and freedoms of others", claims in Jamaica for such breaches were primarily against the State. Even if on the specific facts the ruling were to be overturned at appeal, the principles established by the Constitution are clear and the Bain case has opened the door to their testing.
We don't expect that this will be the case with Rev Roper, the principal of the Jamaica Theological Seminary and the Jamaica Evangelical Alliance (JEA), several of whose affiliates and spokespersons were active in a campaign in support of Prof Bain in his fight to stay at CHART.
Rev Roper, a liberal theologian and pastor of the Missionary Church, recently and publicly supported the repeal of Jamaica's law that criminalises anal sex. As a consequence, he was disinvited from speaking at two functions that are the 50th anniversary celebrations of the evangelical alliance. He was also threatened with expulsion from the group.
"We reserve the right to ask somebody to remove themselves from the organisation by virtue of the fact that what they have articulated publicly is not in the interest of advancing the case of the association..." said Alvin Bailey, JEA president and bishop of the Holiness Christian Church. "...The evangelical churches are partners to a lawsuit to retain the buggery law..."