Rights And Write-Offs - Balancing Ethics And Human Rights

Joan Grant Cummings, Guest Columnist

It wasn't even a month ago that I was lamenting with a 'sistah-activist' about the lack of both movements and governments that had values and real agendas based on a people and/or rights-driven philosophy.

There used to be a real Left and a real Right. You knew where you stood. You had something to argue and reason about. We lamented that our land of mainly peaceful revolution in the 1970s, especially, that had inspired whole countries and actors in various global spaces, seemed to have lost its voice and appetite for leadership and human rights.

In 'those times', our country was a voice that was proclaimed 'leader of the global South', a voice that many countries endeavoured to follow, not for our music but for our political attitude as it pertained to dealing with social exclusion.

We sighed with nostalgia in remembrance about the fight and victory for the minimum wage; access to education for all; the right to maternity leave with pay; pay equity; the bauxite levy; the Agricultural Marketing Corporation; my personal favourite, the incomparable National Housing Trust; and the right of inheritance for children born out of wedlock or who were deemed 'illegitimate' or 'bastards'. We spontaneously broke into song, "... No bastard nuh deh again".

We wondered how many of the young female managers in the private sector knew that their beautiful locks and other natural hairdos were once against the corporate dress code - written or unwritten. In fact, they wouldn't be allowed to apply for a job, not even at entry level.

Or how many tertiary-level students understood the importance of and/or knew the history as to how they got there. Nowadays, female students steer far from being associated with women's rights or, heaven forbid, feminism! Amid the junk science that created the male marginalisation thesis and the call at student election time for "no panty government", I wonder how many of these young men and women, largely raised by 'single mothers', knew that not long ago, this would disqualify them from accessing and controlling many spaces.

They would have been deemed 'write-offs' by some elements in the society. 'Bastards!'

And then it happened! Amid the IMF distraction to the exclusion of everything else, a bold, young female minister put back the concept of human rights, specifically women's human rights, on the public agenda. She declared that she supports a woman's right to choose. The abortion debate was back. Even The Gleaner came out in support of her and adopted a pro-choice position!

The last joint select committee on abortion chaired by the then minister of health, Rudyard Spencer, evaporated into thin air. No report has been made public, and since that time, a shower of changes in the law has been made, making it even harder to 'win' a constitutional challenge, especially one related to sex and sexuality.

As if one jolt wasn't enough, we received another. A young gay activist decided that enough was enough. Rights are rights, and he would not be treated like a disposable write-off. He took a bold move to challenge being evicted because of his sexual orientation. He has filed a constitutional challenge of the Charter of Fundamental Rights and Freedoms, alleging that, among other things, his rights to privacy and equality have been infringed.

Shock and awe! Immediately, the 'anti-gay Opposition', to protect the "Jamaican way of life", lined up to rebut his argument. Would the owner of the house have been 'uncomfortable' with three women living there, one openly lesbian?

It is amazing how, as Jamaicans, we canturn up or down our barometer to measure when we break the law and need to act. We have a major problem with people assisting the police in solving crimes. Yet, a whole community will organise to 'inform' on a girl who has had an abortion or a man whom they 'think' is gay!

Additionally, J-FLAG is taking on our sit-on-the-fence politicians again, about the offensive buggery law. It's ironic that the same offensive law, the 1864 slavery-driven Offences Against the Person Act, in one fell swoop has managed to deny, block, deprive the rights of women; people of different sexual orientations; and married women who are raped by their husbands.

ETHICS, THE LAW AND PEOPLE'S RIGHTS

So why bother to have the charter if we are going to make provisions through using some fancy legal gymnastics called the savings law clause to write off our rights as invalid? This move gives the State the right to use some old law to defeat and undermine the provisions in the charter.

Yet there is something more sinister afoot here, and we need to discuss this as a nation - a nation that has decided that integrity, accountability, transparency, good governance and an anti-corruption environment are necessary to assure our development; fairness in our judiciary, especially, accountability and honesty among our politicians; and the protection of people's rights.

Unless we now live in a dictatorship or a theocracy, Jamaican society is based on democratic principles, and we are supportive of people's human rights in this struggle between pro-choice and anti-choice forces and anti-gay, pro-gay, sexual and reproductive health and rights.

Jamaica has already given its commitment to protecting the human, sexual and reproductive rights of all its citizens. It is at best a failure and betrayal, and an act of cowardice at the worst, that as a State, we have not moved to protect or enshrine these laws nationally.

Next year is the 20th anniversary of the signing of the International Covenant on Population and Development which seeks to guarantee citizens' sexual and reproductive rights and health. Do we intend, as a nation, to report to the United Nations that we're moving backward or forward on this issue? Or, that we have decided that Vision 2030 and the recently signed Partnership Agreement only applies to some Jamaicans?

Further, by any definition of ethical, it is grossly unethical for any of the State's lawyers and/or judges to be active members of the same groups seeking to deny rights to some citizens. In the case of abortion rights, it is denying 51 per cent of the population their full enjoyment of their human rights, the right to bodily integrity and the God-given right of choice!

BOUND BY RELIGION

How can the Lawyers' Christian Fellowship have standing in any case regarding sexual and reproductive rights and health issues, when the solicitor general and key members of the attorney general's offices belong to this group?

Where is the fairness in such a system that would make all Jamaicans confident to rely on our judiciary to mediate justice and fairness in our society?

The dictator Pinochet was set free as one of the law lords had made a donation to Amnesty International, a group with standing in the case against him! The minister of justice and, by extension, the State, must put in place the necessary countervailing measures to right this power imbalance and even the perception of a conflict of interest.

Jamaicans who are committed to human rights for all are pro-choice and pro-life. What we are not is anti-choice. Making available the appropriate information on sex, contraceptives, abortion and sexuality is not "coerced abortion or murder".

It is disingenuous and hypocritical for anyone to claim this when their anti-choice stance actively incites communities to violate, and even murder, members of the LGBT community and cause the social exclusion of girls and women who continue to risk their lives and die because they had to choose to terminate an unintended or an unwanted pregnancy. The latter, in particular, speaks to our high rate of gender-based violence through coerced/early initiation sex, rape, including marital rape, incest or sexual exploitation.

How come there's no back door dealing with politicians to write this in law, bearing in mind the high levels of impunity with which women and girls are violated.

All of us are born with the right to bodily integrity, the right to the expression and enjoyment of our sexuality, and the safeguarding of our health. In democratic societies, where human rights are practised and respected, a key ethical principle is that the social, political and economic inequalities that exist among some segments of the society which is a disadvantage, must be used to advantage them. In other words, we must protect our 'minorities and vulnerable' groups.

While there are no explicit laws separating Church from State in Jamaica, that is not a sound reason to extend the right to some church members to control how our laws are enacted and higher offices of the judiciary, as well as politicians. We do not need a church lobby among politiciansm, and with Politicians, and other state machinery such as the judiciary. This is theocracy by stealth.

It will result in greater social exclusion towards the realisation of Vision 2030. The State needs to act to reassure ALL Jamaicans that they can have confidence in their justice system and that the State is the people's human-rights champion.

Failure to do so will create even greater schisms in the social contract and subvert the goals of the new Partnership Agreement.

Joan Grant Cummings is a gender and environmental specialist. Email feedback to columns@gleanerjm.com.