Tue | Dec 7, 2021

Editorial | Need for conversations on buggery law

Published:Monday | November 2, 2020 | 12:06 AM

Mia Mottley has set out a rationale and response, without the prompting of the courts, to the claims and feelings of discrimination faced by gays and lesbians in Barbados. It could provide a template for other Caribbean leaders, including Jamaica’s, for how they could begin a constructive dialogue on how to address this issue.

In a Throne Speech in September, Barbados Governor General Dame Sandra Mason announced that Ms Mottley’s administration intends to legalise same-sex civil unions, which, by implication, means that laws which criminalise buggery will also go. Barbados’ proposal won’t, at least for now, extend to marriage – an issue which the government proposes to, at some point, put to a referendum. What Ms Mottley has promised is a significant step in acceptance of the LGBT agenda. Over time, it is expected that the move would contribute to lowering opposition to a full reversal of current laws and approaches to this highly emotive issue. One side of the argument is that, considered in its larger context, discrimination against people because their orientation is other than being heterosexual is among the human rights issues of the times.

Indeed, a clear, consistent and strident lobby, including by some here in Jamaica, has long insisted that the idea of the state as voyeur, prying into the sexual conduct of consenting adults, engaged in the privacy of their bedrooms, is of itself profoundly troubling. And of more fundamental concern has been the argument of its infringement on the constitutional rights of individuals to privacy and freedom of association.

Or, looked at another way, the argument is about people’s sexuality – who they love and how they express that love.

On the other hand, this approach is not the case in many Caribbean countries, including Jamaica, where same-sex marriages are not only constitutionally barred, but buggery – whether hetero or homosexual – is a crime, for which people can be jailed for up to seven years. And there are strong arguments, based in religious beliefs and fears of a decline in social order, that are brought to bear on the discussion.

ASSAULT ON HUMAN DIGNITY

The courts in Belize and Trinidad and Tobago have ruled that the retention of the colonial-era buggery laws not only assaults the aforementioned constitutionally guaranteed rights to privacy and of association, but also represents an assault on human dignity.

Dame Sandra observed that countries that retain these antiquated presumptions of humanity, which define people’s worth based on sexuality, are increasingly at odds with emerging global norms. She argued that they hold potentially negative implications for the Caribbean’s relationships, economic and political, with large and important segments of the world.

“The settlement of Barbados was birthed and fostered in discrimination, but the time has come for us to end discrimination in all forms,” Dame Sandra said in the speech, representing the government’s position.

This discussion ought to take place in Jamaica, too. It could be argued that our Constitution proscribes same-sex marriage, or as it puts it, “any other relationship in respect of which any rights and obligations similar to those pertaining to marriage are conferred upon persons as if they were husband and wife”. That argument has not so far been made or tested.

If advanced, this construct would appear to already open the debate on whether same-sex civil unions could be accommodated within the framework of the current Constitution; amending that clause for certainty of our position would require a two-thirds majority in both chambers of our Parliament.

Public discussion on the scope of this meaning seems to be clearly required. The alternative is for it to be challenged in the courts and determined by our judges and not our government and people together.

That, were Prime Minister Andrew Holness to be so inclined, it would be readily achievable in the current Lower House, where the Government commands more than three-quarters of the seats, means it could be determined in one house as a partisan matter. It would, however, need to co-opt the vote of at least one opposition member of the Upper House, the Senate, to carry the measure in both Houses of Parliament.

CONSTRAINED

However, Prime Minister Holness is yet to sort out his agenda of governance and human-rights issues. And as is the norm with players on Jamaica’s draughts board of politics, he perhaps feels constrained by populist, anti-gay rhetoric that is perceived to be the country’s norm.

Government and leadership, however, are not only about testing the wind and then scurrying along with, or ahead of the crowd. Leadership often demands being at the head and convincing others to the idea and the cause – not because it is popular, but for the fact that it is right.

What does the PM see as being right in this matter?

In the speech, Dame Sandra said: “If we wish to be considered among the progressive nations of the world, Barbados cannot afford to lose its international leadership place and reputation. Nor can a society as tolerant as ours allow itself to be blacklisted for human and civil rights abuses or discrimination on the matter of how we treat to human sexuality and relations. My government will do the right thing, understanding that this, too, will attract controversy. Equally, it is our hope that with the passage of time, the changes we now propose will be part of the fabric of our country’s record of law, human rights and social justice.”

Does Prime Minister Holness share this assessment? Does he find common ground with Barbados on this concern? Does he fear similar marginalisation by the international community of Jamaica? The promise of a referendum on the matter (or at least a part of it) has gone for a full term without further discourse and any attempt at building a consensus, one way or the other.

Jamaica must have the conversation now.