Finally the Guyana Human Rights Association (GHRA) speaks out in support for the Anti- discrimination Bill.

PRESS RELEASE CONSTITUTION (AMENDMENT #2) BILL #9 OF 2003

 (THE FUNDAMENTAL RIGHTS BILL)

Co-Presidents:                                                                                          

Moulvi Abdool Azeez 

Sharon Atkinson 

Michael McCormack 

Background

Constitution (Amendment) Bill #18 of 2000 aimed to incorporate a number of amendments arising from the constitutional reform process into the Fundamental Rights Section of the 1980 Constitution. Sexual orientation as a prohibited ground for discrimination was one such inclusion. The Bill was approved unanimously in Parliament in December 2000. Following the President s refusal to give his assent to the Bill, however, it was returned to Parliament. A new Bill Constitution (Amendment) Bill #9 of 2003 is now before Parliament, minus the clause. A second new Bill Constitution (Amendment #4) Bill #10 of 2003 consisting solely of the sexual orientation clause has also been put before Parliament.

While sexual orientation is ostensibly the only issue at stake in re-consideration of the Bill #9, the GHRA is also concerned over a number of anomalies in the Fundamental Rights Section of the 1980 Constitution that were not addressed by the Constitution Amendment Bill #18. The GHRA first brought them to the attention of the Parliamentary Sub-Commission on Constitutional Reform established in 1997. This statement first discusses the sexual orientation clause then the other issues of concern to the GHRA.

1. NON-DISCRIMINATION ON GROUNDS OF SEXUAL ORIENTATION 

 Opposition to the clause on sexual orientation as a prohibited ground for discrimination by a group of religious leaders prior to the elections of March 2001, led to the refusal of Presidential assent to the Bill. The argument of the religious leaders centered on the assertion that the clause opened the door to same sex marriage. The technical issue at stake with respect to sexual orientation, however, is who people are, not how they behave. The sexual orientation clause does not, in fact, relate to homosexual behaviour of any kind, much less marriage. Failure to recognize and focus on this distinction has thoroughly confused discussion of the issue. Enlightened opinion internationally has concluded that sexual orientation is a fundamental aspect of the human personality. Whether a persons sexual orientation involves an emotional attraction to people of the same gender (homosexual orientation), another gender (heterosexual orientation) or both genders (bi-sexual orientation), this is considered to be a God-given, natural part of the persons make-up. In the same way that a person does not choose his or her race, national origin, ethnicity, abilities/disabilities, neither do they choose their sexual orientation. 

 It is a fact that at every level of plant, animal and human life, inexplicable biological differences occur. For the same reason that discrimination is illegal against persons on the basis of other aspects of their natural personality, persons should not be discriminated against on the basis of their sexual orientation. Disability is included as another prohibited ground for discrimination in the same Fundamental Rights Bill. Disabilities represent an earlier example of religious edicts (which characterized disabilities as a punishment from God), having to give way to recognition that people are to be regarded as fully human, regardless of how much this challenges prejudice. Efforts by the religious leadership to confuse discrimination and same sex marriage is particularly irresponsible in light of Article 149(3) of the Constitution which expressly preserves the laws as they relate to adoption, marriage, divorce, burial and other matters of personal law from the influence of article 149(2), (in which sexual orientation would be located). Opponents of the inclusion of sexual orientation completely distort the reality of what has occurred in countries that have for many years extended protection against discrimination to non-heterosexuals. 

 In a White Paper on Civil Partnerships published last month, the British Government made projections of how many gay couples are likely to register their partnerships when the proposed Bill becomes law. Using the experience of the nine European Union States which already legalize same sex partnerships, it is projected that about 3% of gay couples would attempt to register their partnerships by the year 2050. If such low projections are likely in countries long tolerant of diverse sexual orientation, it is difficult to imagine the issue of same sex marriages being raised for years in a society such as Guyana, in which colonial legislation still criminalizes same sex relations. > From the little information available on public opinion, there appears to be significant agreement that homosexuals should be protected from discrimination, which is the essence of the Bill. For the above reasons the Guyana Human Rights Association (GHRA) believes that the term sexual orientation should be an approved ground for protection against discrimination in the Guyana Constitution. 

 The GHRA supports a sequenced action approach in which changes in the law are accompanied and in tune with changes in public understanding of the issues. Such an approach should be promoted by all political parties and by moderate religious opinion. Such a strategy is set out by Justice Albie Sachs in his autobiography The ­­­Soft Vengeance Of A Freedom Fighter (p.211): first, decriminalize and get rid of laws which punish gays for doing what straights were allowed to do, then equalize, and bring an end to discrimination in employment, housing etc, and, finally, create the conditions to live freely and differently in all spheres of life. The GHRA has concerns that the intolerance and homophobia currently demonstrated by some religious leaders will provoke hostility towards homosexual individuals whether or not the clause is approved into law. Recently, the Chairperson of the Guyana Council of Churches, Bishop Juan Edghill, was quoted as stating that the clause will open the door to homosexuality, bestiality, child abuse and every form of sexual perversion being enshrined in the highest law of this land. This statement is calculated to generate hysteria among parents and guardians towards homosexuals. 

 The GHRA repudiates this propagandistic and unfounded manipulation by religious leaders of the serious problem of child abuse for their political ends. Children in Guyana (and most other countries) have more to fear from hetero-sexual than homo-sexual predators. 

 In the same interview Bishop Edghill threatened Evangelical Obedience will be invoked if the clause is approved into law. Is this to be understood as a form of fatwa, implying his organization is prepared to take whatever action is required to prevent the clause being implemented?

 Further evidence of virulent homophobia on television shows currently sponsored by religious bodies should engage the attention of the Advisory Broadcasting Committee on the grounds of incitement. 

 The consequences for Parliament of the ignominious strategy chosen to confront the issue are worrying. Having unanimously approved the clause, all Parliamentary Parties appear now to be unanimously moving in the direction of rejecting it. Apart from being a mockery of parliamentary practice, such a capitulation, in the face of a Presidential refusal to assent, does not reflect well on the much-vaunted new parliamentary powers. Moreover, non-discrimination and inclusion is the rallying point for the major opposition. 

 Sending a message that discrimination in relation to sexual orientation is a matter for personal conscience rather than a matter of principle, raises questions whether race and gender should not be treated likewise. Rather than collapse in the face of religious distortion of the issue, a more principled course of action would be for all parties to provide leadership for the position that Guyana cannot accept or afford discrimination in any form. We close with another quote from Justice Sachs, this time from his comments on the inclusion of sexual orientation in the new South African Constitution: The manner in which discrimination is experienced on grounds of race, sex, religion or disability varies considerably. In the case of gays, history and experience teach us that it is the denial of full moral citizenship in society because you are what you are, that impinges on the dignity and self-worth of a group.

2. OTHER ANOMALIES

(A) Excessive Limitations on Rights The common element in all of the amendments sought by the GHRA is the removal of the excessive limitations on a wide range of rights to be found in the Fundamental Rights section of the 1980 Guyana Constitution. The recognized grounds for restricting enjoyment of rights are set out in what are known as The Siracusa Principles. They must be (i) prescribed by law ; (ii) in the context of a democratic society and for reasons of (iii) public order; (iv) Public Health; (v) Public morals; (vi) National Security; (vii) Public safety (viii) Rights and freedoms of others: (ix) Restrictions on public trials. These nine reasons are internationally recognized as the only ones which States may invoke to justify restricting rights of their citizens. Whether grounds to justify invoking the restrictions exist, or whether it is a pretext for repressive action is a separate matter.

(B) Fundamental Rights & Freedom Sections of the Guyana Constitution The list of issues identified below is illustrative, not exhaustive of excessive limitation on rights in the current Guyana Constitution. 

i. Right to life Art.138(2)(a-d). The formulation of this article views deprivation of life as a casual matter. In particular the test of being reasonably justifiable is insufficiently rigorous to justify deaths that occur in order to effect a lawful arrest or to prevent the escape of a person lawfully detained (2)(c); or in order to prevent the commission by that person of a criminal offence (2(d). 

ii. Denial of personal liberty Under Art.139(2)(a) preventative detention for periods up to three months is excessive. Preventative detention in this case refers to administrative measures to prevent persons from visiting certain locations, not that they are detained in custody for this period. 

iii. The prohibition against Torture and inhuman or degrading treatment is set aside if the punishment was lawful in Guyana immediately before the commencement of the constitution (art.142(2). This is clearly a limitation outside of anything envisaged in the Siracusa Principles. 

iv. Searches of the Person or private property are legitimate if they are carried out for purposes related to town and country planning, development, or utilization of mineral resources in such manner as to promote the public benefit (our emphasis) art.143(2)(a). The right to privacy is further limited by the power of officers of government, local democratic organs or body corporate to verify information required for planning, management and development of the national economy art. 143(2(c). These sweeping powers exercised by a variety of unnamed pubic servants clearly exceed the Siracusa-approved limitations.

v. The right to a fair trial art.144(2)(b) is limited by the fact that the person charged with a criminal offence should be informed of the offence as soon as reasonably practical, rather than by a specific time.

vi. The presumption of innocence is limited by imposing on any person charged with a criminal offence the burden of proving particular facts. art.144(11)(a). 

vii. Freedom of movement may be restricted for the purposes of preventing the subversion of democratic institutions in Guyana art.153(4). The vague wording of this limitation renders it open to abuse for political reasons. 

viii. Constitutional protection by the courts for the redress of violation of rights is fatally undermined by allowing magistrates to dismiss any case if, in his opinion, the raising of the question is merely frivolous or vexatious. Art.153 (4).

Summary Of Anomalies 

Constitution Amendment Bill #18 has removed some anomalies from the 1980 Constitution. It also introduces an eclectic collection of new rights mainly of a social, economic or cultural nature. As a response to the problem of excessive limitations on rights Constitutional Reform Bill # 18 is inadequate in two major ways. Firstly, why some amendments were made and others equally in need of reform were not addressed, is unclear. Secondly, with respect to new rights, some have been lifted wholesale from international Conventions on the rights of Women and the rights of the Child. Why some and not all is again unclear. In light of the principle established at the World Conference on Human Rights in Vienna (1993) that all rights are to be considered universal, equal and indivisible, the distinction adopted between human rights and fundamental rights in Constitution (Amendment) Bill #9 is obsolete and unacceptable. 

Executive Committee Guyana Human Rights Association (July 18 2003 )

 56B Austin Place & Hadfield Street, 

Georgetown, 

Guyana, S. America

P.O. Box 10653 

Tels: (592) 22-61789/74911 Fax: (592) 22-74948 

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