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PEOPLE & THINGS: Not legally possible, PM?


Peter Wickham

PEOPLE & THINGS: Not legally possible, PM?

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It is quite ironic that in the wake of Prime Minister Kamla Persad-Bissessar’s initiative to fundamentally alter the constitution of Trinidad and Tobago by a skilful manipulation of sections of the law that were not entrenched, she would now conclude that the “decriminalisation of homosexuality” was not “legally possible”.  

In the context of Trinbago’s most recent experience, this statement epitomises the extent to which politicians are conveniently inclined to confuse the realm of legally possibility with the baggage of political feasibility. As a political consultant and political scientist, I fully appreciate both concepts and further understand why a politician must determine what is politically prudent from time to time.

Our most basic understanding of the power of Parliament is often taken from the writings of the 18th century Jurist William Blackstone, who made it clear that “parliament can do anything except make a man a woman or a woman a man”. Although the latter part of this reference is now obsolete, the fact remains that in Trinidad the parliament can “decriminalise homosexuality” tomorrow if it wanted by way of simple legislation that is no different from that which imposed a “run-off”.

It is therefore more correct to say that Persad-Bissessar’s government has no desire to “decriminalise homosexuality” while it clearly had a desire to impose the “run-off”. The issue is one of political expediency and not legal possibility and the prime minister needs to be honest regarding her government’s priorities.

With the matter of legal impossibility set aside, the next issue becomes one of understanding the concept of human rights in liberal democracies like Trinbago and Barbados. If properly understood, the definition of “democracy” has more to do with the power of the majority, and it is for this reason that we are referred to as “liberal democracies”. We are liberal because we retain constitutions and moreover subject ourselves to international norms and values which are considered sacrosanct.

If a government that represented the majority of Trinbagonians had a desire to deny a minority racial group of its fundamental rights, it would be prevented from doing so by constitutionally entrenched provisions.

Moreover, if there was an attempt to change these constitutionally entrenched provisions, minority groups could appeal to institutions within the framework of international human rights to which Trinbago subscribes. It matters not that such an initiative might be popular since we all understand that these norms and values override the momentary lapse in judgement of any government that attempted to suspect what we understand to be “fundamental rights”.

The inclusion of persons demanding special protection is naturally a matter of political judgement; however, the case with homosexuality is quite different. In this instance, Trinbago retains specific laws which criminalise some “homosexual acts” and moreover seek to preclude “homosexual men and women who are not citizens [from entering] Trinidad and Tobago” (Section 8, Trinidad and Tobago Immigration Act). It is interesting that neither of these laws is enforced, but the government has not made their removal a priority.

Notwithstanding the fact that no enforcement has been attempted, human rights activists quite rightly have argued that the existence such laws within a legal framework which claims to abhor discrimination is highly offensive, and one would think that a woman of East Indian descent should appreciate the extent to which this causes offence.

In the case of both Trinidad and Tobago and Barbados, there can be no question that we abhor discrimination on the basis of sexual orientation as evidenced in CADRES polls conducted during 2013 in both places. In the case of Trinidad and Tobago, 85 per cent of people opposed discrimination on the basis of sexual orientation, while in Barbados 82 per cent expressed similar sentiments. One wonders about the origin of this belief that Trinidad and Tobago is so very divided on this issue.

If it were to be established that women or East Indians were discriminated against in the laws of Trinidad and Tobago, the population would perhaps be horrified at the suggestion that a government did not have the requisite legal authority to rectify this matter and the case with these anti-homosexual laws is no different, especially as it is clear that public opinion opposes discrimination so vehemently.

It is interesting that in the prime minister’s comments she sought cover under the cassock of the Catholic Church, especially as she is herself a practising Hindu. It is therefore not surprising that the Archbishop of Port of Spain protested his church being identified as one of the main objectors to gay rights in Trinidad and Tobago.

Other distinguished citizens and groups have distanced themselves from the Prime Minister’s remarks and she interestingly enough now finds herself isolated on this issue simply because she confused political expediency with legal possibility.

• Peter W. Wickham is a political consultant and a director of Caribbean Development Research Services (CADRES).

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