This government has done some strange things since coming into office, but there can be few more bizarre than its most recent proposal to put to referendum whether or not a minority group should continue to be discriminated against in law. Either such a group is entitled to human rights in international law or they are not, and if they are – and it is unquestionably the case that they are ‒ what is the government doing asking the populace for an opinion on the matter? Its duty in such circumstances is to bring the country into line with all the human rights conventions to which we are signatory, and, it might be added, that we are expected to comply with under the provisions of our own constitution.
What is at issue at this stage is the decriminalization of “buggery”, as it is called in our statutes, which would allow consenting adult males to engage in same-sex intimacy. This is not the first time the matter has been raised: the constitutional reformers around 2000 had added the sexual orientation of a person to the list of those who could not be treated in a discriminatory manner and who should not be subject to any law which was discriminatory. It might have passed quietly, had not someone drawn it clumsily to public attention, resulting in the PPP/C, with its eye on the 2001 election, withdrawing its support for the amendment in question. While that amendment, desirable in its own right, would not, in and of itself, have nullified the “buggery” law, it is unlikely the latter would have survived any legal challenge thereafter.
As we reported on Thursday, the previous government at the UN Human Rights Committee’s Universal Period Review in Geneva, Switzerland in 2010, committed to holding consultations on decriminalizing same-sex relations, but despite a motion to hold these being passed in the National Assembly in 2012, this was still not done. The matter was raised again under the last government, when MP Juan Edghill, who became notorious for confusing his role as a churchman with his political responsibilities, spoke out forcefully against making homosexuality legal between consenting adults. Since he was not directly contradicted, it was as if he was speaking for the government.
As for Mr Bharrat Jagdeo, he said at the time that the country was not ready for same-sex marriage, which is exactly what he said again last week, viz “I don’t think the country, based on what our consultations show, is ready for same sex marriage, frankly speaking.” This is a red herring, of course, since the issue is not about same-sex marriage, but decriminalizing same-sex intimate relations. One can only conclude that the opposition is as opposed to reforming the law to bring it more into line with our human rights obligations, as the government is, and is consequently deliberately obfuscating the issue.
And as for the present government which made promises in its manifesto which it is now reneging on, the matter of the referendum came up in its response to a thematic hearing on the rights of young persons at the Inter-American Commission on Human Rights in March. According to Mr Joel Simpson, the day after the hearings the government said that Parliament had previously decided that the issue should be determined by a referendum – an asseveration hardly in alignment with reality. In any event, now two government ministers – Messrs Basil Williams and Carl Greenidge – have stated that a referendum is the direction in which the administration intends to go.
That the majority of the population is probably opposed to decriminalizing same-sex intimacy is something which both sides of the aisle recognize, and this is no doubt being factored into their political calculations. An outsider might be somewhat surprised that this administration is quite prepared to face down the public on really unpopular measures such as some of those contained in the last budget, for example, but is not prepared to bring our laws – and constitution – in line with human rights. In our Thursday report we quoted human rights activist Ms Karen de Souza as saying that they were “disguise[ing] their own homophobia, their own reluctance to stand up for what is right in the face of whatever resistance there is …”
And that resistance is in the first instance being fuelled by a large segment of the religious community. However, it is worth repeating yet again that this is a secular state, and the law is not applied to most matters of what might loosely be termed sexual mores; it is for the various faiths to guide their congregations in what they see as the right path where this is concerned. In other words, the state simply has no business in the bedroom. It does not punish adultery, to give but one example, or ban contraception, although one or another faith or denomination may have strong positions on these matters and is at liberty to advise their adherents accordingly.
In 1957, ten years before England and Wales changed the law on homosexuality, none other than Geoffrey Fisher, then Archbishop of Canterbury, spoke in favour of a report which recommended a change in the law. He famously said: “There is a sacred realm of privacy… into which the law, generally speaking, must not intrude. This is a principle of the utmost importance for the preservation of human freedom, self-respect, and responsibility.”
And if the government is really serious about holding a referendum on the matter of same-sex intimacy, then it is clearly losing its grip. As has been pointed out before, most recently by Mr Ferlin Pedro in a letter to this newspaper on Thursday, this is a representative democracy, not a direct democracy. Referenda ‒ which constitute a form of direct democracy – are utilized very sparingly in representative democracies, and invariably in connection with what might be called major framework issues. Our constitution provides the framework of the state, and the only referendum we ever had was in 1978 in relation to a new constitution. Leaving aside the matter of fraudulence for the sake of argument, that was a proper subject to take to the people.
As it is too, the present constitution has retained various provisions which can only be amended or deleted with the consent of the people. These also concern major structural matters, such as the territorial integrity of the state, for instance. What are not taken to the people are what could be referred to as content issues, that is to say, individual laws or portions of laws. These are what we have voted in our MPs to deal with, and they are simply abrogating their responsibilities if they are passing the buck back to us to take a decision for them; the buck is supposed to stop with them.
If they are going to hold a referendum on decriminalizing intimate same-sex relations, then potentially they can hold a referendum on any matter where they want to avoid a decision. Once they start doing that, we’re into direct democracy territory, and we will not have a representative democracy in the sense that either of our constitutions conceived it. In other words, it would be a case of subtly altering the framework of the state by surreptitious methods. Even those who do not want to change the “buggery” law, can surely oppose this government’s move to put a content issue to referendum, which political objections apart, will also be horrendously expensive.
Where costs are concerned, it seems incredible that the government is prepared to waste so much taxpayer money asking taxpayers a question to which they know the answer already. It is even more incredible that they are prepared to waste so much money with the sole objective of denying a group of people their human rights. As defenders of liberty, human rights and the rule of law, the government – along with the opposition, it must be said – should stand down; they simply do not meet the standards required. Their modus operandi is, as Mr Joel Simpson has been quoted as saying, “the antithesis of human rights.”
