Just last week, Attorney General Mrs Marlene Malahoo Forte, QC, was embroiled in controversy after she tweeted that it is "disrespectful of Jamaica's law to have the rainbow flag flown here". The rainbow flag is widely known to be associated with the LGBT community, which lost 49 of its members in what has been described as the worst mass shooting in the USA.
Following the shooting, President Barack Obama ordered that flags at the White House and on all United States government buildings be flown at half-staff. As a result, the US Embassy in Jamaica complied by flying the US flag along with the rainbow flag at half-mast.
The learned attorney general did not make reference to the Jamaican law, which she said was being disrespected despite being asked by the US Embassy to provide the legal reasoning for the tweet. I suspect that there has been no response in this regard, for the simple reason that flying the rainbow flag anywhere in Jamaica does not constitute a breach of Jamaican law, even though many may view it as being offensive.
SOVEREIGN TERRITORY
The tweet by the attorney general raises two fundamental issues: the first one is whether the US Embassy is the sovereign territory of Jamaica, the receiving State, or the sovereign territory of the USA, the sending State; and the second is whether there ought to be a protocol governing the use of social media by government ministers and other public officials.
With respect to the first issue, the answer is to be found in the Vienna Convention on Diplomatic Relations, 1961 (the Convention). Article 22 specifically provides that 'the premises of the mission shall be inviolable'. As such, the agents of the receiving State may not enter them, except with the consent of the head of the mission. The receiving State 'is under a special duty to take all appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity'. Also, the premises of the mission, their furnishings and other property shall be "immune from search, requisition, attachment or execution".
Article 21 of the Convention provides that "the mission and its head shall have the right to use the flag and emblem of the sending State on the premises of the mission..."
The Convention does not state that the property belongs to the sending State. However, it is on account of the foregoing provisions that the premises on which the US Embassy is located are treated, for all intents and purposes, as being a part of the US territory. In reality, though, it is still Jamaica's territory with concessions given to the USA by virtue of the rules, norms and custom of international relations.
It is for that reason that although one may argue that the rainbow flag is not the American flag, the US Embassy is still free to use the premises it occupies as it sees fit, which would involve the flying of any flag it chooses. That is its right and privilege under international law.
NO ADEQUATE DIRECTION
With respect to the second issue, it is clear that despite the proliferation of social media, successive administrations have allowed high-ranking government officials to use social media sites without control or adequate directions. The attorney general tried to retract her comments by suggesting that she was misunderstood but, like a spent arrow, her comments could not be taken back; the damage (as some have viewed it) had already been done; that is one of the dangers of social media.
So, the issue is much deeper than a tweet or the flying of the rainbow flag. A protocol on the use of tweets, and social media in general, by public officials may have prevented this outcry. It is therefore high time for Government to develop a protocol regarding the use of social media by its officials. It could go a far way in preventing embarrassment to the Government and people of Jamaica in the long run.
Following the shooting, President Barack Obama ordered that flags at the White House and on all United States government buildings be flown at half-staff. As a result, the US Embassy in Jamaica complied by flying the US flag along with the rainbow flag at half-mast.
the tweet that started it all
The learned attorney general did not make reference to the Jamaican law, which she said was being disrespected despite being asked by the US Embassy to provide the legal reasoning for the tweet. I suspect that there has been no response in this regard, for the simple reason that flying the rainbow flag anywhere in Jamaica does not constitute a breach of Jamaican law, even though many may view it as being offensive.
SOVEREIGN TERRITORY
The tweet by the attorney general raises two fundamental issues: the first one is whether the US Embassy is the sovereign territory of Jamaica, the receiving State, or the sovereign territory of the USA, the sending State; and the second is whether there ought to be a protocol governing the use of social media by government ministers and other public officials.
Article 21 of the Convention provides that "the mission and its head shall have the right to use the flag and emblem of the sending State on the premises of the mission..."
The Convention does not state that the property belongs to the sending State. However, it is on account of the foregoing provisions that the premises on which the US Embassy is located are treated, for all intents and purposes, as being a part of the US territory. In reality, though, it is still Jamaica's territory with concessions given to the USA by virtue of the rules, norms and custom of international relations.
It is for that reason that although one may argue that the rainbow flag is not the American flag, the US Embassy is still free to use the premises it occupies as it sees fit, which would involve the flying of any flag it chooses. That is its right and privilege under international law.
NO ADEQUATE DIRECTION
With respect to the second issue, it is clear that despite the proliferation of social media, successive administrations have allowed high-ranking government officials to use social media sites without control or adequate directions. The attorney general tried to retract her comments by suggesting that she was misunderstood but, like a spent arrow, her comments could not be taken back; the damage (as some have viewed it) had already been done; that is one of the dangers of social media.
So, the issue is much deeper than a tweet or the flying of the rainbow flag. A protocol on the use of tweets, and social media in general, by public officials may have prevented this outcry. It is therefore high time for Government to develop a protocol regarding the use of social media by its officials. It could go a far way in preventing embarrassment to the Government and people of Jamaica in the long run.
Meanwhile the Gleaner's editorial five days ago was instructive:
it read in part:
Our suspicion is that Marlene Malahoo Forte was enticed, and ultimately the victim of what, for the modern politician, can be two very seductive lures. One of is the pull of populism. The other is the power of myriad social-media platforms, with their sense of immediacy and no restrictive band for discourse, to, not infrequently; induce even presumably sensible people to spout off on serious matter with an apparent absence of thought.
First, when Mrs Malahoo Forte tweeted this week about the Orlando massacre, no one would doubt her abhorrence and, therefore, genuine condemnation of the action of Omar Mateen. Mateen's attack was a gay club. It is reasonable to assume that the vast majority of his victims, the 49 who are dead and the more than 50 who were injured, where either gay, lesbian, bi-sexual or transgender people. Whatever else were Mateen's motives, what happened on Sunday in Orlando, Florida, was also a vulgar act of hate, perpetrated against a specific group of people, in which at least one person whose parents are Jamaicans, was killed. In many parts of the world, people are showing solidarity with the gay community against this outrage by flying the rainbow flag or lighting buildings in its colours.
NOT A PRIVATE MATTER
In Jamaica, as at many other American missions around the world, the rainbow flag was hoisted at half staff alongside the stars and stripes, at the US embassy. That Mrs Malahoo Forte said, was "disrespectful of Jamaican laws". Then she added the disclaimer that her statement was a personal view - except that as attorney general, the Government's senior legal officer and a member of the political executive bound by the tenet of collective responsibility, declaration about public law isn't a private matter.
But of what Jamaican laws the Americans were disrespectful is unclear. Indeed, in her current job, and as a former junior foreign affairs minister, Mrs Malahoo Forte would know that under article 22 of the Vienna Convention on Diplomatic Relations the premises of a diplomatic mission "shall be inviolable" and that Jamaica is under "special duty" to protect that inviolability, including their absolute right to fly that rainbow flag. Neither is there any law in Jamaica that explicitly or implicitly prohibits the rainbow flag or prevents free speech or the expression or preferences, or solidarity with any group of persons.
CRIMINAL OFFENCE
Mrs Malahoo Forte, however, ignorant of anti-gay sentiment in Jamaica, from which, we believe, she probably felt she could extract political value by ingratiating her way into it. That has been tried in the past, and it is for fear of a potential political backlash against a government that initiated such a move, that buggery, or anal sex, remains a criminal offence in Jamaica.
The fact that this archaic law remains does not preclude people's right to lobby - by whatever legal means, including the flying of flags of their choice - against it, or against other acts or laws that discriminate against gays. These are principles we expect to be upheld and defended by the attorney general, or anyone giving legal counsel to the State, thereby acting on behalf of all its people. A potentially unintended consequence of what Mrs Malahoo Forte did was to suggest that some Jamaicans, because on their sexual orientation, are less equal, without the same right to expression and protection than others.
also see:
Ronnie Thwaites’ rubbish on flying rainbow flags grooms children into “particular lifestyle”
Ian Boyne on Grow Up On Gay Intolerance!
Flags, forced evictions & foolishness
Reverend Al Miller has no moral authority (yet again) to speak on flags & correctness
Rainbow flags vs Jamaicans murdered which is more important?
Attorney General Malahoo Forte condemned for comments on US Embassy's rainbow flag
Dormant anti gay feelings resurface in Florida shooting aftermath
finally the Marcia Forbes media practitioner and former TVJ General Manager offered some advice in the Gleaner: Don't Hit 'Send' - Political Parties Urged To Establish Communication Policies As Social Media Gaffes Continue
ENDS
also see:
Ronnie Thwaites’ rubbish on flying rainbow flags grooms children into “particular lifestyle”
Ian Boyne on Grow Up On Gay Intolerance!
Flags, forced evictions & foolishness
Reverend Al Miller has no moral authority (yet again) to speak on flags & correctness
Rainbow flags vs Jamaicans murdered which is more important?
Attorney General Malahoo Forte condemned for comments on US Embassy's rainbow flag
Dormant anti gay feelings resurface in Florida shooting aftermath
finally the Marcia Forbes media practitioner and former TVJ General Manager offered some advice in the Gleaner: Don't Hit 'Send' - Political Parties Urged To Establish Communication Policies As Social Media Gaffes Continue
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