Stephen Vasciannie
THE CHARTER of Rights has sprung to prominence. After 15 years of consideration, and after many years of being largely ignored by the wider
society, the charter is now front page news. It is now front page news because some leading members of the church community and the Lawyers' Christian Fellowship have strongly raised concerns about aspects of the draft document.
The concerns are mainly - but not exclusively - about sex. Under the heading "New Charter of Rights, Wrong!", the National Church Alliance and the Concerned Leaders, Christian Lawyers and other members of the Jamaican Society, in a full-page advertisement in last Wednesday's Gleaner listed nine perceived difficulties with the charter. The first three of these were:
Homosexuality could be made legal without the buggery law being repealed by Parliament;
Judges could be forced to make homosexual marriages legal;
It could open the door to the decriminalising of abortion.
These concerns are, no doubt, genuinely held. And, although they have come rather late in the day, lateness alone should not be used as a shield to restrict further consideration of the issues. The Charter of Rights is intended to reflect the fundamental rights that we all have as citizens of Jamaica. It is more than appropriate for the legislature to listen to the concerns of religious leaders on the proposals.
But, at the same time, the onus should now be on the religious leaders and lawyers to explain fully how they have reached their conclusions. On its face, the Charter of Rights would not make homosexuality legal, would not in any way prompt the legality of homosexual marriages, and would not open the door to legalising abortion. The religious leaders and lawyers therefore need to substantiate their position. And, in doing so, I hope they will rely on generally accepted principles of legal argumentation.
'RESPECT FOR PRIVATE ... LIFE'
The religious leaders and lawyers have, so far, relied on the provision in the Charter of Rights on privacy to found their arguments about sex, gay marriages and abortion. The relevant provision in the Charter (Section 13(2)(j)) gives the following right to individuals (or confirms the right): "The right to protection from search of the person, respect for private and family life, privacy of the home and other property and communication."
So, if I understand it properly, the argument from the church leaders and lawyers is that guaranteeing "respect for private ... life" and "privacy of the home" could lead to the right to undertake homosexual activity and to gay marriage.
I do not believe that this is a plausible argument in Jamaica. In the first place, the Report of the Joint Select Committee of Parliament, counters the possibility raised by the church leaders and lawyers. The committee was asked by the Jamaican Forum for Lesbians, All-Sexuals and Gays (J-Flag) to include a provision against discrimination on grounds of sexual orientation in the charter. The committee said no in the following terms:
DISCRIMINATION PROTECTION
"The committee is not at present disposed, however, to include in the Charter of Rights a guarantee of protection from
discrimination on the ground of sexual orientation, because of the implications which this would have, in particular, its implications in relation to the institution of marriage and questions of parenting. It would, however, bring to the attention of the Government, as a matter for consideration, the issue of the repeal of the provisions of the Offences Against the Person Act in so far as it relates to the offence of buggery between consenting adults in private" (Report, page 32).
Thus, the members of the committee putting together the Charter of Rights did not see themselves as incorporating any provision in favour of homosexuality or gay marriages in the charter. If the people who prepared the document have expressed their understanding of what the document means, then at least some weight must be attached to that statement.
Secondly, even without the clear statement of the committee, it is implausible to conclude that respect for private life and privacy of the home in a Jamaican legal document points to support for homosexual activity or gay marriage. In our context, respect for private life and privacy of the home are concerned essentially with the idea that the State cannot unjustifiably enter your home - the legal application of the concept that your home is your castle.
The fact that respect for private life and privacy of the home are assured does not mean that you are free within the privacy of your home to break the law. If you commit murder at home, no one doubts that the law can reach you. If you have unlawful drugs stored at home, the law can reach you. So, similarly, if you undertake homosexual activity at home, the law can reach you. Nothing in the charter challenges this approach.
And, with respect to gay marriage, the matter is even more straightforward. Marriage - the voluntary union of one man and one woman - has numerous public aspects, and even some of its private aspects are clearly governed by law. So, it would be untenable to argue in the Jamaican context that privacy rights and home rights somehow justify gay marriage. More anon.
Stephen Vasciannie is a professor at the University of the West Indies and a consultant in the Attorney-General's chambers.
