Charter of Rights and the moral divide
Below is an excerpted address by Shirley Richards, attorney-at-law and immediate past president of the Lawyers' Christian Fellowship, to the Lions Club of Kingston last Wednesday.
Like it or not, the Charter of Rights, having been passed by both Houses of Parliament, is expected to become law shortly. I think, maybe, that you may be interested in knowing a few of the expected changes which will come to our society as a consequence of the charter. Here are a few of the changes:
Philosophical change in the approach to rights: In what will shortly become the previous document, rights are stated but circumscribed by limitations. In this document, it is fair to say that except for those specific limitations which have been saved, the only limitations which will be recognised will be such as are demonstrably 'justified in a free and democratic society'.
The document has both vertical and horizontal effects, meaning that we now have rights against the Government and also against each other. Expect the society then to become more litigious.
The major new rights are the right of a child to publicly funded tuition at the pre-primary and primary levels (Section 13 (k)). The right to enjoy a healthy and productive environment (Section 13 (l)). This should mean, therefore, that we will be able to sue persons who drive defective vehicles on the road as well as companies whose plants emit poisonous fumes.
Civic organisations can now intervene on behalf of individuals whose rights have been contravened or are likely to be contravened (Section 19 (2)).
Care has been taken to preserve the death penalty [Section 13 (7)], legislation that deals with sexual offences, offences that pertain to the life of the unborn, and laws that pertain to obscene publications [Section 13 (12)]. It remains to be seen how the courts will deal with these laws which have been retained.
Marriage has also been defined [Section 18 (2)] as follows:
No form of marriage … other than the voluntary union of one man and one woman may be contracted or legally recognised in Jamaica.
Thanks to our intervention, provisions relating to religious liberties have also been included at Section 17, basically repeating provisions of Section 21 of the past document.
Why did the Lawyers' Christian Fellowship intervene in the passage of the charter? In brief, we saw a document whose philosophy was the supreme autonomy of the individual. The philosophical flaw in the document then, and still is so in the current document, but to a lesser extent, is a failure to face the fact that we are all selfish by nature and that, further, we live in a community where, like it or not, our private actions do impact the life of the community. Frankly, some of us are concerned that the concept of human rights is being used to erase the distinction between right and wrong, and that human rights, in itself, have now become the new religious dogma.
After examining the document, we became very concerned about the destination of the proposed journey. When we intervened in 2006, we realised then that all our laws and any limitations on perceived rights would now be subject to what obtains in a 'free and democratic society'.
what's the destination?
The concept of us as a nation setting out on a journey in the pursuit of freedom and liberty of the individual sounded exhilarating, exciting even, but did we have any idea as to our destination? Is it good governance to lead a nation to a possible and even likely destination without their informed consent? The philosophy of the document, as it was, would certainly have allowed for a striking down of the laws relating to buggery, abortion and obscene publications. Not only that, we were concerned that the robust language of Section 21 of the soon-to-be-replaced Chapter III of the Constitution was not repeated in the proposed document.
Section 21 deals with freedom of conscience and freedom of religion, and preserves a certain amount of autonomy for religious bodies. All that was given was a right to freedom of thought, conscience, belief and observance of religious and political doctrines. Knowing what was happening in so-called free and democratic countries, e.g. Canada, where consistently, the rights of homosexuals trumped rights to conscience, and where it has been declared that women have the right to take the lives of their unborn children, ought we to have sat by just getting on with our daily routine without, at the very least, warning the nation?
We could do no less than sound a warning. This we did, and thankfully, we received a favourable hearing.
It took some courage to be able to include clauses in the current charter which have now saved laws relating to sexual offences, the life of the unborn, and obscene publications, and have preserved our religious liberties. Moreover, as said before, the document now defines marriage in the way that I dare say most Jamaicans now define that institution - being that of one man to one woman.
In this regard, I want to urge our society to give more than lip service to marriage. I want to urge our society to view the institution as an honourable one, one which provides the best environment in which to raise our children.
A mutually faithful heterosexual relationship is not merely one private option among many, but has serious implications for the public good and the health of the nation.
Our Parliament is still there to make laws for the peace, order and good government of Jamaica (Section 48). Our judges are there to interpret and apply these laws. If we want laws changed, let us do so upfront, with the full knowledge of the society. Let the Parliament not abdicate its responsibility of making laws.
Having included these sections in the charter, I want to say to the Government that we expect that if at any time there is a court decision which goes contrary to the intentions clearly expressed on behalf of the electorate that you expressed in this charter, that we do expect that you will honour the Jamaican people by taking such legislative action as may be necessary to rectify any faulty wording which may become apparent.
To the charge that the charter ignored the rights of homosexuals, I ask, where do rights originate? And if there is no transcendent moral law, what gives anyone any rights, and what prevents mere power from prevailing? If it is true that repeal of the buggery law will assist with reducing the spread of HIV/AIDS, then why is it that the November 2010 edition of Lancet Infectious Diseases reported that "despite an overall decline in HIV incidence in France, transmission seems to be out of control among men who have sex with men?" Lancet is a highly reputable medical publication. Note that buggery was decriminalised in France since the time of the French Revolution in 1791. Other reputable sources (e.g., Eurosurveillance) report similar trends for HIV incidence among MSMs in many developed Western nations.
If the buggery law is repealed, what will prevent our children being taught in school that the homosexual lifestyle is a good and acceptable one?
Let me tell you about the case of Eunice and Owen Johns, a Jamaican couple who currently reside in England. They had fostered children 15 times before. Their application to foster children in 2007 was not approved by the Derby Council because, in answering questions posed by the social worker, they had made it clear that they could not and would not be willing to tell a child that homosexuality is a good thing. The High Court on February 28, 2011, sided with the council. According to the BBC report of the case, the court said that if children were placed with caregivers who objected to homosexuality, "there may well be a conflict with the local authority's duty to safeguard and promote the welfare of looked-after children".
Basically, what that decision meant is that objection to homosexuality is not in the interest of the welfare of children. To put it another way, if you do not agree with homosexual conduct, you cannot foster children in the UK! Out goes many Christian-minded people and also many Jamaican couples living in the UK! Talk about discrimination! If objection to the homosexual lifestyle makes you an unsafe parent, how long will it be before one's natural children are removed by the State for their 'safety'?
rejoice only briefly
To those persons who are like-minded - especially to the churchfolk - don't get lost in your rejoicing. Let your rejoicing be brief, for the battle has only just begun. Now as never before in our history, churches are going to have to unite to fight a common battle. Weapons will have to be carefully chosen. This battle is not one to be fought with weapons of war as in the Middle East. Instead, we will have to fight back cultural imperialism with a moral revolution!
And so I call for a moral revolution in this country; one in which we live right; one in which we speak the truth without having to be pressured at commissions of enquiry; one in which we can dialogue and cross-examine without being crass; one in which we choose to have our children within the context of stable marital unions; a society in which fathers support their children; a society in which we value our children from conception; one in which we support our mothers; one in which we jealously value and cultivate the healthy and mutually faithful man-woman relationship; and a society in which we eschew the use of violence as a means of solving our problems.
I have borrowed a thought from the words of Norman Manley uttered in Parliament on the occasion of the coming into force of the 1962 Constitution. This is the paraphrase:
Let no one imagine that we have secured our future forever. It is only the spirit and vigilance of the people which will preserve those good things that are in the Charter of Rights.
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