The Charter of Fundamental Rights and Freedoms is one of the most important pieces of legislation to be passed since our Independence from Britain in 1962. Its passage has come at a time when, as a nation, we seek to make Jamaica the place of choice to live, work, raise families, and do business. However, it is unfortunate that the significant place of lesbian, gay, bisexual and transgender (LGBT) Jamaicans and the important contribution they have made in Jamaican life have been lost on our leaders and legislators in the framing of the charter.
Las May, in The Sunday Gleaner of April 3, intelligently depicted the gaping human-rights deficiency with respect to the passage of the charter, and has forced us to think about Jamaica's social and political attitude towards homosexuals. Understandably, while the enactment of laws alone will not change the ingrained discrimination within our society, the exclusion of sexual orientation, health status and disability can have significant implications on the most vulnerable and marginalised in our society. Jamaicans now have legal protection to discriminate against these groups. One can only hope that respect and tolerance will prevail.
Sections 76, 77 and 79 of the Offences Against the Person Act are used routinely to justify the violation of the rights of LGBT Jamaicans. By the State's failure to provide protection against discrimination, it reinforces the perception that human-rights violations such as extortion, torture, sexual assault, denial of employment, and educational opportunities, and other acts of discrimination are permissible. Victims of these violations do not report them to the State, which is, at times, the perpetrator and, therefore, this increases their vulnerability to such abuse. Reports of human-rights violations to Jamaica Forum for Lesbians All-Sexuals and Gays have increased significantly between January and March 2011 compared to the corresponding period in 2010.
lack of growth 17 years later
In 1991, former Prime Minister Edward Seaga said the charter should "create a real basis of personal security and build new foundations of true justice for all". It is most unfortunate and regrettable that after a 17-year delay, Jamaica's 21st-century legislators have adopted an actively exclusionary approach to the rights of non-heterosexuals. Our legislators have failed us by their failure to prevent the "violation of essential human dignity and freedom through the imposition of disadvantage, stereotyping, or political and social prejudices, and to promote a society in which all persons enjoy equal recognition under the law as human beings or as members of a society, equally capable and equally deserving of concern, respect and consideration." [Law v Canada (Minister of Employment and Immigration 1997 1 SCR 497 )]
In fact, the most dangerous clause in Chapter 3 is the savings law clause (Clause 11), which protects antiquated laws enacted before Independence from judicial review. The savings law clause retards the development of rights, is an abomination to good governance, and belies the separation of powers, which is so crucial to a functioning democracy. The Parliament has taken away the right of the ordinary citizen to challenge laws such as the buggery and gross indecency laws and established even greater autonomy over the Jamaican Constitution.
help all Jamaicans enjoy rights
We cannot ignore the implications that the active exclusion on the part of legislators from non-discrimination provisions in this Charter of Fundamental Rights and Freedoms will have on the most vulnerable and marginalised persons in our society, including members of the LGBT community. The Government must do more in ensuring that all Jamaicans enjoy their inherent and inalienable rights as we seek to become the place of choice to live, work, raise families, and do business.
Human, social and economic development and human rights are symbiotic, as has been evidenced by the Human Development Report 2000. This is because of the simple and yet complex nature of human rights and human development, which reinforce one another in their efforts to achieve shared goals and progressively converge to achieve development outcome.
In other Commonwealth jurisdictions, for example, Canada and the UK, great legislative strides have been made to secure the protection of the rights of lesbian, gay, bisexual and transgender persons through amendments to their charters of rights or other legislation. Therefore, as a nation, we must begin to recognise that the right of persons to non-discrimination is crucial in engendering a society which is founded on the premise of freedom, justice and peace.
Dane Lewis is executive director of the Jamaica Forum for Lesbians, All-Sexuals and Gays.