A High Court judge yesterday used a human rights forum to make a strong call for an end to discrimination based on sexual orientation and matters of privacy, starting with the amendment of laws which now affect people in such a manner.
Justice Frank Seepersad made the call at the symposium organised by the Faculty of Law, University of the West Indies (UWI), St Augustine, in partnership with the European Union.
“We cannot bury our heads in the sand. The world has changed, relationships have evolved and an individual’s right to determine whom he or she should love and forge a future with should be respected,” Seepersad told the forum.
“The courts should not be shackled by antiquated laws that discriminate on the basis of sexual orientation and should not have to mete out treatment that is inconsistent with the treatment that is afforded to heterosexual couples.”
He slammed the criminalisation of anal sex between consenting homosexual couples and the failure to recognise civil partnerships or marriages between consenting same sex couples
Before an audience of leading jurists, intellectuals and activists, he suggested “that the law has to be dynamic. It has to evolve and it has to be relevant to the society and in this global era it is ill-advised to operate as if we are in a vacuum.
“Our laws should conform to international accepted standards and our citizens have every right to be afforded the same level of respect and protection that citizens in other parts of the developed world enjoy.”
The renowned jurist said judges were the guardians of the Constitution and acted as the upholders of the fundamental rights and freedoms therein contained.
Accordingly, he said, judges played or ought to play a pivotal role in advancing the protection of human rights. He said the human rights challenges that faced judges could be readily remedied if there was the political will to do that which was right.
“The challenge for the Judiciary arises when internationally recognised human right norms are not incorporated into domestic law,” he said, in his discourse at the Noor Hassanali Auditorium, UWI.
To illustrate the point, he zoomed in on the controversial topic of sexual orientation and same sex unions. He noted that the Republic Constitution contained no explicit provision that covered non- discrimination on grounds of sexual orientation.
“Our equality legislation is primarily focused on equality of opportunity and makes no provisions with respect to discrimination that is premised upon sexual orientation,” he added.
He said while in many countries there had been a gradual acceptance of the right to enjoy a meaningful union with a partner of choice, to be able to own property jointly and to receive estate entitlements, in T&T the Sexual Offences Act criminalises buggery as between homosexual couples and did not recognise civil partnerships or marriages between consenting same sex couples.
“This position is viewed as being consistent with the right to enjoy family life and also the right not to be discriminated against because of sexual orientation. Our citizens have and enjoy no such rights and/or entitlements if they decide to be involved with a partner of the same sex,” he said.
He also cast light on T&T’s discriminatory Immigration Act which prohibits entry to homosexuals, a matter which is now engaging the Caribbean Court of Justice in the case of openly gay Jamaican attorney Maurice Tomlinson.
Referencing matters affecting the right to privacy, he referenced the recent case of West Indies cricketer Lendl Simmons who was ordered to pay $150,000 in compensation for leaking sexually explicit photographs of account executive Therese Ho, with whom he had an extra-marital affair.
Seepersad said the court determined that there was no common law right to privacy and there was no tort of the misuse of private information.
However, he pointed out that in Europe, the European Convention or Human Rights recognised that there was a right to privacy and therefore issues relating to privacy were determined with regard to the human rights element as laid down in the convention. Seepersad also called for the abolition of the death penalty.