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No need to probe Bain's right to fair hearing - litigation expert

Published:Tuesday | January 27, 2015 | 1:00 AMBarbara Gayle

Director of litigation in the Attorney General's Department, Carlene Larmond, has submitted that the court does not have to embark on an enquiry as to whether the University of the West Indies (UWI) has infringed Professor Brendan Bain's right to a fair hearing within a reasonable time.

Larmond said the university was a juristic entity and not a public authority and, therefore, the court would have to consider whether the UWI breached Bain's freedom of expression and freedom of thought and conscience.

She argued that the university could not breach Bain's right to a fair hearing within a reasonable time by an independent and impartial court or authority established by law. She said fair hearing could only be guaranteed by the State.

Larmond said that, with regard to the question of the rights in issue, the university was bound to uphold Bain's right to freedom of expression, and his right to freedom of thought and conscience.

She said the court will have to consider if those rights were breached.

In its defence, the university has said that Bain was not fired because of the expert evidence he gave in Belize in 2012 because it recognised he had the right to do so.

He was asked by church groups to give expert evidence in a case in which a gay man was challenging the buggery law in Belize.

Lost confidence

Bain, who is being represented by attorneys-at-law Georgia Gibson Henlin, Taniesha Rowe-Coke and Kristen Fletcher, had a two-year contract with the university as head of the Caribbean HIV/AIDS Regional Training Network. He was fired because the university said his constituents had lost confidence in him.

He has sued the university for breach of contract, defamation and breach of his constitutional rights. He is contending that he was fired because of the testimony he gave in Belize.

The attorney general is an interested party in the matter as the case involves constitutional issues.

Yesterday, Larmond submitted before Justice Lennox Campbell, Justice Paulette Williams and Justice Frank Williams that she did not find any case where a termination of contract had been in breach of fundamental rights.

However, she pointed out that if Bain can satisfy the court that his dismissal was a reprisal or punishment for his freedom of expression, that action could be in violation of his rights to freedom of expression.

Larmond said the court may ask if it was unreasonable for the university to place some emphasis or take into consideration the fact that some sections of the vulnerable community had put before the university their concerns in relation to Bain's role in providing the expert report and what message it sent.

Queen's Counsel Hugh Small will begin to make legal submissions on behalf of the UWI when the hearing resumes today in the Supreme Court.

barbara.gayle@gleanerjm.com