But Constitutional Commission Says Discrimination on Basis of Sexual Orientation Unacceptable.
The Constitutional reform Commission has said that discrimination based on sexual orientation is unacceptable and should be addressed under well-defined ordinary legislation. It also reported that while it had received no submissions for or against same sex unions, it had considered the matter and concluded that marriage should continue to be between a man and a woman.
While agreeing that this was not a constitutional issue, the Comission said it considered a submission that sexual acts between consenting adults of the same sex should be criminalised. Its view was that any kind of sexual intimacy in public should continue to be a criminal act.
Today, we continue serializing the Commission’s report, looking at Chapter Three whose theme is: “Strengthening our fundamental rights and freedoms”:
EXTENSION OF PROTECTION ON THE GROUNDS OF DISCRIMINATION
In considering protection from discrimination, there was a proposal that gender should be included among the provisions. It was the general view of Commissioners that sex was already included in the Constitution; however, there was a strong minority view that discrimination on the basis of sex does not mean gender. Therefore, on that basis, non-discrimination on the basis of gender should be included in the Constitution. While Commissioners were sensitive to the issue, the majority did not endorse that viewpoint.
Discrimination against Women
The Commission noted the definition of discrimination against women as proffered by the UN Convention on the Elimination of All Forms of Discrimination Against Women (1979), which states that: “…any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.”
The Commission also noted that the Convention establishes an agenda for action to put an end to sex-based discrimination. Those countries ratifying the Convention are also required to enshrine gender equality into their domestic legislation, repeal discriminatory provisions in their laws, and enact new provisions to guard against discrimination against women. By accepting the Convention,
States commit themselves to undertake a series of measures to end discrimination against women in all forms, including:(a) to establish tribunals and other public institutions to ensure the effective protection of women against discrimination; and (b) to ensure elimination of all acts of discrimination against women by persons, organizations or enterprises.
The Commission noted that Saint Lucia has ratified the Convention and that countries that have ratified or acceded to the Convention are legally bound to put its provisions into practice.
(25) With respect to discrimination against women, the Commission recommends that the provisions of the UN Convention on the Elimination of All Forms of Discrimination Against Women (1979) should be implemented and where complementary included in the Constitution.
The Commission was made aware of an opinion by Justice Edwin Cameron, Judge of the South African Supreme Court cited in the South African Law Times, where it was noted that sexual orientation was defined on the basis of erotic attraction in the case of heterosexuals to members of the opposite sex, in the case of gays and lesbians to members of the same sex.
With respect to sexual orientation, the majority of Commissioners were not convinced that it should be included as one of the provisions while a minority could not understand why such a significant percentage of the population should be ostracised in a modern constitution.
It was noted that giving sexual orientation constitutional approval will have implications for certain sexual offences such as buggery. To this end, there may have to be legislative reforms on a wider scale if such a concession is made.
The point was made that there was a high level of violence and abuse directed against persons who were not heterosexuals and who have other sexual orientations. Constitutional protection would ensure that state-sponsored organisations would not discriminate against these individuals. It was argued that persons should not be fired from their jobs or excluded from employment on the basis of their sexual orientation. The fundamental rights and freedoms clauses of the Constitution ought not to allow any discriminatory practices against anyone regardless of their sexual orientation.
There were divergent views among members of the Commission. One view was that the first paragraph of Chapter 1 on The Protection of Fundamental Rights and Freedoms which states:“Whereas every person in Saint Lucia is entitled to the fundamental rights and freedoms, that is to say, the right, whatever his race, place of origin, political opinions, colour, creed or sex, but subject to respect for the rights and freedoms of others and for the public interest, to each and all of the following, namely-…” appears to be comprehensive enough to cover everybody regardless of sexual orientation. It was further argued that this issue should be dealt with under ordinary legislation and not in the Constitution.
A contrasting view to this was that Section 1 under the fundamental rights and freedoms provisions is not enforceable by virtue of the exclusion of Section 1 under the provisions of Section 16 which states: “If any person alleges that any of the provisions of Sections 2 to 15 inclusive of this Constitution has been, is being or is likely to be contravened in relation to him (or, in the case of a person who is detained, if any other person alleges such a contravention in relation to the detained person), then, without prejudice to any other action with respect to the same matter which is lawfully available, that person (or that other person) may apply to the High Court for redress.”
In order to make Section 1 enforceable, Section 16 would have to be extended to say: “If any person alleges that any of the provisions of Sections 1 to 15 inclusive of this Constitution has been, is being or is likely to be contravened …” This was refuted, on the basis that the discriminatory grounds referred to in Section 13 (3) repeats the very grounds cited in Section 1. This therefore makes these rights enforceable. The additional ground being recommended would be better placed under Section13 (3) rather than including it in Section 1.
Another argument for inclusion of sexual orientation as a ground for discrimination is that Constitutions must have a built-in ability to reflect the times as they are. Race, place of origin, political opinions, colour, creed or sex are the issues of that time when the emphasis was on political and civil rights. Most constitutions that have been reviewed in recent times, for example the South African Constitution, are beginning to recognise another class of rights and have gone the route of extending the grounds of discrimination to include social and economic rights.
It was further argued that ordinary legislation that dealt with some of those issues, for example issues of gender identity, sexual orientation and gender issues, are not sufficient and that they really should be reflected in the Constitution to secure, particularly for women, equal treatment and protection. There was also a growing acceptance of the fact that there are clear issues relating to sexual orientation in that it is being used as a basis upon which to promulgate severe levels of abuse.
The Commission also considered whether sexual acts between consenting adults of the same sex in private should not be criminalised but did not make a recommendation.
(26) With respect to sexual orientation the Commission recommends that discrimination based on sexual orientation is unacceptable and should be addressed under well-defined ordinary legislation.
Common Law Unions
The Commission recognised that common law relationships are integral to Saint Lucian society. In examining the issue the Commission recognised the need to provide protection to parties in common law relationships and considered whether they should be granted rights to protect them from discrimination.
The status of marriage as against common law unions was discussed by the Commission and the debate ranged from whether this fell within the purview of the Commission because it did not receive any recommendations on that issue, neither was it an issue discussed at the public consultations in respect of making special provision for common law unions.
The Commission considered several questions, including what determines a common law union. What are the consequences of such a union? What is a person entitled to on the death of a party? How do you regulate the interest of an existing spouse and a common law spouse and the children of the two unions? The Commission considered that these were among the issues to be decided.
The Commission took note of the Organisation of Eastern Caribbean States (OECS) Family Law Project which dealt with the issue in some respects and noted that the intention was to draft legislation in that regard. Therefore, some Commissioners felt that the Commission might be premature in addressing this topic at this stage. Further, Commissioners considered that the issue was not so much recognition of common law unions in the Constitution as it is the consequences of such unions. In this regard, there will be need to ensure protection for children. An examination of the Convention on the Rights of the Child may be more relevant in terms of securing protection for children of a common law union.
There was the view that there may not be a need to mention common law unions in the Constitution if there is already sufficient protection on the basis of gender and for children in keeping with the Convention on the Rights of the Child, the law of trust, et cetera. These will go a very long way in terms of securing the necessary benefits.
The Constitution is the supreme law which holds the ideals of the society. Marriage is considered in the Constitution because it is something the society regards as ideal.32 The dearth of submissions in relation to common law relationships leaves the Commission guessing as to the public’s position on the matter. However, the commission found it necessary to make the following recommendations.
With respect to common law unions, the Commission recommends the following: (27) Parliament should consider examining the Convention on the Rights of the Child with a view to incorporation into domestic law.(28) Children born out of wedlock should receive the same treatment under the Constitution as those born in wedlock.(29) Parliament should enact laws to provide equal recognition and protection to parties in common law unions.32 Section 13 (4) of the Constitution states that the protection from discrimination may be infringed by a law so far as that law makes provisions with respect to marriage.
No submissions were received by the Commission for or against same sex unions. However, the Commission considered the matter and concluded that marriage should continue to be between a man and a woman.
While the Commission agreed that this was not a constitutional issue, it considered a submission that sexual acts between consenting adults of the same sex should be criminalised. The Commission’s view was that any kind of sexual intimacy in public should continue to be a criminal act.
With respect to same sex unions, the Commission recommends the following:(30) Sexual intimacy in public should continue to be a criminal offence.(31) Marriage should continue to be between a man and a woman.
The Right to Privacy
Commissioners noted that the right to privacy is mentioned in the Preamble but not dealt with specifically within the Constitution, except for the provisions of Section 7 pertaining to protection from arbitrary search or entry.
There were submissions that people’s rights to privacy were frequently violated by the media. This view was also shared by some Commissioners. However, at the same time, the Commission noted that care should be taken not to stifle the media but there was a need to find ways to ensure that the media report with due accuracy and prudence. The Commission considered Section 14 (1) of the Belize Constitution which provides as follows:
“A person shall not be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to any unlawful attacks on his honour and reputation.
The private and family life, the home and the personal correspondence of every person shall be respected.”
With respect to the right to privacy, the Commission recommends the following: (32) The right to privacy should be expressly included in the Bill of Rights.(33) Related provisions to the right to privacy should be strengthened and extended to protect the rights and dignity of individuals.