Thu | Sep 20, 2018

UWI buggered Bain case

Published:Sunday | June 1, 2014 | 12:00 AM
Paying lip service to respect for Professor Bain's freedom of expression (as Dr Carolyn Gomes repeatedly does in her recently published open letter) won't do.
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Gordon Robinson, Contributor

Jamaicans are being fed a steady diet of mealy-mouthed commentary on Brendan Bain's misfortune thinly disguised as 'balance'.

Only Jeff Cobham put the episode in correct perspective. Even he fumbled the ball on the goal line, thus wasting excellent reasoning. At least he didn't obfuscate. In his May 26, 2014 letter to the editor, Jeff included all contexts and nuances. It deserves repeating as fulsomely as The Gleaner's oppressive word count police allow:

"1. Since the launch of USAID's HIV/AIDS programme ... , the agency has been on the forefront of the global AIDS crisis.

2. That agency's position is ... as ... expressed by UN Secretary General Ban Ki-moon in 2009: "Shine the full light of human rights on HIV. I urge all countries to remove punitive laws, policies, and practices that hamper the AIDS response. In many countries, legal frameworks institutionalise discrimination against groups most at risk. Yet, discrimination ... only fuels the epidemic and prevents cost-effective interventions. We must ensure that AIDS responses are based on evidence, not ideology ... ."

3. ... CHART is funded primarily by overseas agencies: USAID, Centers for Disease Control & Prevention, Health Resources & Services Administration, Global AIDS Programme, and the Global Fund.

My two questions: Was the expressed opinion of CHART's head ... in consonance with the stated position of [CHART's] funders? If it was not so consonant, and in the face of strident opinion expressed by a large number of organisations which CHART is mandated to assist, is it not the [UWI's] prime duty to ensure there's not the slightest possibility that [CHART's] funding ... be in any way compromised?"

Jeff's facts are incontrovertible.

LENGTHY SPIEL

Regarding his first question, I could go into a lengthy spiel as to why the correct answer is "his views were not inconsonant" (a mere reading of factual data can't conflict with the high ideals of a fight to change the data in future) but I won't. It's so important readers grasp the fundamental issue that, for the purposes of my argument with Jeff, I'll abandon my preferred answer and accept the answer is 'no'.

Now, to Jeff's key query: In the face of "very strident opinion expressed by a large number of organisations which CHART is mandated to assist", what was the duty of the UWI? Was it, as Jeff implies, "to ensure that there's not the slightest possibility that [CHART's] funding ... be in any way compromised"?

Absolutely, categorically, 150 per cent NOT.

Even if Jeff's unsound premise that CHART is mandated to assist these organisations were valid, the answer remains a resounding NO.

On this matter, there can be no 'balance'. It's the most insidiously dangerous attack on our fundamental rights since Independence.

There've been too many casual references to freedom of speech; to CHART's purpose and mission; to the consequences of retaining or repealing buggery laws; to the imaginary 'conflict' between Brendan's Bain's alleged personal opinions and his professional responsibilities; and, if the conflict exists, what would be his employer's remedy.

Let me begin by clearing up one important matter. None of USAID, CDCP, HRSA, GAP or UWI is in need of remedy because there hasn't been any wrong. In its statement announcing Professor Bain's termination, UWI conceded categorically he'd done nothing wrong. No wrong; no remedy required. What happened isn't remedial action of any kind. So what was it? As Jeff's letter implicitly admits, it was a surrender to angry bullying arising from courthouse disappointment.

Jamaica's Charter of Fundamental Rights and Freedoms opens on the following inviolable foundation [Section 13(1)]:

"(b) all persons in Jamaica are entitled to preserve for themselves ... the fundamental rights and freedoms to which they are entitled by virtue of their inherent dignity as persons and as citizens of a free and democratic society; and

(c) all persons are under a responsibility to respect and uphold the rights of others recognised in this chapter"

Unlike England, Jamaica has a written, supreme Constitution. It trumps all else, even Parliament. So, the obligation placed upon 'all persons' (including UWI) to "respect AND UPHOLD the rights of others ..." is unassailable.

The Constitution goes on to state [s.13(2)]: "No organ of the State shall take any action which abrogates, abridges or infringes ..." the guaranteed rights including

"(b) the right to freedom of thought, conscience, belief and observance of political doctrines;

(c) the right to freedom of expression."

As a CARICOM contractor responsible for CHART's daily operations, UWI is an organ of all regional states, including Jamaica. By itself, it's long been recognised as a public body. Whether as public body, state organ or incorporated resident of Jamaica, what's UWI's authority for believing the Constitution doesn't apply to it?

Professor Bain has successfully led CHART, apparently despite his inconvenient opinions now publicly expressed, for more than a decade. So, the problem can't be his views or the fact that he holds them. If he's opposed to repeal of buggery laws, he's been so opposed since CHART's inception without reprimand. It's that he exercised his constitutional right to express those views in a Belizean court, thus publicly embarrassing foreign funders who decided his evidence was incompatible with his job.

In the face of persistent hounding (Jeff called it "strident opinion") from said funders, UWI has a "prime (constitutional) duty" to "respect and uphold" Professor Bain's right to freedom of expression, no matter the financial cost.

Paying lip service to respect for Professor Bain's freedom of expression (as Dr Carolyn Gomes repeatedly does in her recently published open letter) won't do. SHE MUST RESPECT AND UPHOLD IT. She can't approbate and reprobate at the same time.

What exactly did Brendan Bain say in his affidavit?

"As a physician and public-health practitioner, one of my responsibilities is to assess behaviours ... impact on health and well-being. When something is beneficial, such as exercise ..., it's my duty to recommend it. Likewise, when something is harmful, like smoking, overeating, alcohol or drug abuse, and unsafe sexual behaviour, it's my duty to discourage it ... .

"This report shows that the relative risk of contracting HIV is significantly higher among ... MSM in Belize than in the general population. This is also true in several other countries

for which data are available, including countries that have repealed the law that criminalises anal sex and countries where the law still applies [my emphasis].

"Some public-health practitioners
... have hypothesised that decriminalising ... anal intercourse among
consenting adults would lead to a reduction in the rate of HIV
infections among MSM. To date, published data have not
substantiated this hypothesis
[this doesn't
contradict the hypothesis simply reports that it hasn't been
proven]."

Professor Bain closed with the
following certification:

"... I've been given no
instructions by any party, by any person representing a party, or by any
other person with respect to this report. The report represents my own
opinions based on my professional experience ... . The opinions
expressed in the report are mine and should not be attributed to any
institution with which I am associated
[my
emphasis]
."

PERSONAL
OPINION

So, Professor Bain was fired for expressing a
personal opinion as an expert in a case, under brief from no one, which
he expressly ensured COULD NEVER BE ATTRIBUTED TO CHART or UWI. As a
litigation lawyer, I know Professor Bain isn't the first or last expert
witness with whom some litigant disagrees. Lawyers know what to do.
Another expert can testify. Questions can be put to Professor Bain (in
writing). If lawyers bugger up a case by neglecting steps to deal with
damaging expert evidence, they can't thereafter blame the
expert.

Jeff, whatever "duty" the UWI imagined it owed
to bullying funders, it also owed a constitutionally overriding "prime
duty" to Brendan Bain. What ought UWI to have done? UWI should've sought
legal opinion to show its funders that, as much as it'd love to help
them teach Bain obsequiousness lessons, it would be unconstitutional to
do so. Instead, it chose to become a whimpering, spineless institution;
to abandon its academic ideals; and to cower before the might of the gay
lobby

Peace and love.

PS: Apologies
to history buffs everywhere. Of course, Lord Nelson's final battle was
at Trafalgar, NOT, as I wrote on Tuesday, Waterloo. Thanks to regular
reader Mark Brooks for reminding me.

Gordon Robinson
is an attorney-at-law. Email feedback to
columns@gleanerjm.com.