By Tracy Robinson, senior lecturer, Faculty of Law, University of the West Indies
The pillars of the Caribbean’s fundamental and highest law, the constitutions, are respect for human dignity and human rights. Many constitutions describe all persons as being ‘endowed equally by God with inalienable rights and dignity’ and declare ‘faith in fundamental human rights and freedoms’.
The chapters in Caribbean constitutions protecting fundamental rights and freedoms, using different language, establish the norms for a just society that respects human rights and create an accountability mechanism. If anyone’s fundamental rights and freedoms are infringed by a law or governmental action, they are entitled to challenge same. The starting point for this action for redress is the need to ensure an avenue for access to justice for minorities who are discriminated against and stigmatised or have had their rights abridged. Built into Caribbean constitutional design, therefore, is the acknowledgment that minorities may need judicial protection of their rights where there is hostility, violence and breaches of their rights by the majority.
Laws in the Commonwealth Caribbean that criminalise sexual activity between adults of the same sex fall afoul of fundamental values and norms expressed in Caribbean constitutions, especially the core principle of respect for human dignity. Although these laws focus on certain sexual acts, like anal sex, and not homosexuality per se, they disproportionately and negatively impact on the lives of gay men, lesbians, bisexuals and transgendered persons.
Human dignity demands, as the South African Constitutional Court put it, that we recognise ‘the worth of all members of our society.’ Dignity is at the heart of the right to privacy which is protected by Caribbean constitutions. Properly understood, privacy includes a person’s freedom to have human and intimate relationships without undue interference by the state and others. By making certain forms of sexual expression between consenting adults a crime, the law degrades sexual minorities and their dignity.
While it is not clear that the right to privacy can be enforced under the redress provisions of all Caribbean constitutions, it certainly can in some like Trinidad and Tobago and Belize’s and arguably Antigua and Barbuda and St. Kitts-Nevis’.
Moreover, quite apart from the question of enforcement, the right is plainly guaranteed as a general right almost everywhere in the Caribbean. These general declarations of rights in Caribbean constitutions, such as the right to privacy were designed, according the eminent constitutional jurist, Professor Stanley de Smith, to bring ‘out the general purport of the guarantees, lifting them above the austerity of tabulated legalism.’
No Caribbean constitution explicitly provides protection against sexual orientation discrimination, but the Court of Appeal of Trinidad and Tobago explained that the categories of discrimination were not closed in Trinidad and Tobago. Adopting an approach used by other Commonwealth courts, the Trinidad and Tobago judges treated sexual orientation as analogous to some other prohibited grounds of discrimination. In their view, it was not appropriate for an anti-discrimination statute to explicitly deny the possibility of sexual orientation being a prohibited ground of discrimination. The Privy Council, that country’s final court of appeal, appears to have taken a different view, but provided no explanation for repudiating the sensible conclusion of that country’s judges. The upshot is that Caribbean judges, especially in Trinidad and Tobago, Guyana and Belize, where general equality rights are guaranteed, will have to grapple with the equality rights of a range of persons not originally contemplated at the founding of Caribbean constitutions. The approach of the Court of Appeal of Trinidad and Tobago indicates an open mind about the crucial question of what equality means in the Caribbean today.
A concern is always the impact of ‘savings law clauses’ on the ability of citizens to insist that their fundamental rights and freedoms be respected. These clauses might entirely shut out judicial review of laws which were in existence prior to the constitutions on the ground that they infringe fundamental rights. The restrictions of these clauses in Caribbean constitutions should not be overstated. They are impediments to judicial review in a material way only in Jamaica, Trinidad and Tobago, Guyana, the Bahamas and Barbados. But even in those countries, some of the questionable laws criminalising certain forms of sexual expression were enacted in the last twenty years, long after independence. The savings law clauses do not stand in the way of a challenge of these.
Even where formal legal challenges face hurdles like savings law clauses, the broad purport and meaning of Caribbean constitutions remain clear. It was always intended that the constitutional commitment to respecting the human dignity and equality of everyone in the Caribbean would sometimes take place in the courts, but would always also take place within Caribbean communities—newspapers, talk shows, demonstrations, community organising etc—using the constitutional standards as a bulwark against injustice. Litigation is an important tool for vindicating rights and communicating the value of fundamental rights to the entire society. It will not always be available or evenly so across the Caribbean when constitutional norms are breached. Nevertheless, Caribbean constitutions establish the benchmarks for ensuring that Caribbean people can, according to the Guyanese Constitution, ‘live in a safe society which respects their dignity, protects their rights, recognises their potential, [and] listens to their voices…’