Sun | Oct 13, 2019

Editorial | Inane nattering by MoBay’s Davis, Sinclair

Published:Sunday | September 15, 2019 | 12:27 AM
Homer Davis, mayor of Montego Bay.

Hopefully, the group Montego Bay Pride is a juristic person, in which event it should seek an injunction against the St James Municipal Corporation and its chairman, Homer Davis, to prevent them their constitutionally guaranteed right to free speech, to hold and exchange ideas, as well as the right to peaceful assembly. Alternatively, they should find someone who has an interest in the matter to bring the case before the Constitutional Court.

Further, Mr Davis should be sued in both his personal and private capacities as part of a test of Jamaica’s adherence to the guarantees laid out in its Charter of Fundamental Rights and Freedoms and the elasticity of the courts in entertaining complaints of breaches of the undertakings therein.

We know little about Montego Bay Pride, except that it is an organisation that promotes and protects the interests of the LGBTQ community in St James, and especially the parish’s capital, Montego Bay. Apparently, in keeping with its mandate, the group intends to hold a series of activities in the city, including at the Montego Bay Cultural Centre, which is owned and managed by the parish government.

It is not clear whether Montego Bay Pride has as yet formally applied to use the centre, although, city officials suggest, it has advertised events for the venue, including in the square adjacent to the cultural centre. The matter was brought to Mr Davis’ attention at a meeting of the council on Thursday by a member, Charles Sinclair, a lawyer who is also a government member of the national Senate.

What happened next was, in our view, an arbitrary foreclosure of the rights of one category of citizens, which ought to be tested before the courts. Mr Davis, who, by virtue of his chairmanship of the council, also has the title of mayor of Montego Bay, seems to have had a hazy notion of some event planned for the cultural centre, but not who was putting it on. Yet he declared: “… I will not give any permission for it (the event to be held at the centre).”

Evangelical, proselytising mode

Further, he went into preachy, fundamentalist, evangelical proselytising mode. “We must not do anything to disturb the sacredness and purpose of why that building is there. People have their rights, and they can do what they want to do, but you must respect the rights of other people, too,” said Mayor Davis.

A not-unreasonable interpretation of Mayor Davis’ statement is that he believes that the presence of gays, lesbians, bisexuals and transgender people at the Montego Bay Cultural Centre will debase, despoil and, somehow, stain the facility. It will be bombarded with fire and brimstone, perhaps.

There are several important contexts to these observations. First, Section 13 (3) (c) (d) and (e) of Jamaica’s Constitution guarantees, respectively, the following rights:

• The right to freedom of expression;

• The right to seek, receive, distribute or disseminate information, opinions and ideas through any media; and

• The right to freedom of peaceful assembly and association.

Further, the Montego Bay Cultural Centre is a public, not a private, resource, built and funded by all taxpayers, all of whom, regardless of sexual orientation, are entitled to all the rights guaranteed by the Constitution, the inane logic of Mr Sinclair notwithstanding.

Based on Mr Sinclair’s logic, an LGBTQ event at a “building controlled by the municipal corporation”, at which same-sex marriage may be promoted, is anathema to the Constitution. “It is inconsistent with the mandate that we have,” he said.

Jamaica’s Constitution does, indeed, define marriage as a union between one man and one woman, and the buggery law makes anal sex illegal. But there is nothing unconstitutional about advocating for their change, no matter where that advocacy takes place. Indeed, discourse and debate are critical elements of democracy, which is why they are constitutionally guaranteed.

What is unconstitutional is the arbitrary abrogation of these rights by the State or its agents, and in cases where infringements are not reasonably required for the functioning of a democratic society. We would also remind the St James Municipal Corporation, and others, that the Constitutional Court made clear in a 2013 case involving the gay activist, Maurice Tomlinson, that abrogation of a person’s constitutional rights by a private individual is justiciable. Messrs Davis and Sinclair should take note.