Saturday, June 14, 2014

Freedom under Attack! Bain, freedoms and a complicated way to dialogue

Posted June 13th, 2014










For the first time ever, Belize and Jamaica has almost simultaneous protest regarding professor Bain termination. The debate pitted the issue of religious-base bigotry which has a moral stamp of approval against a collective who is concern about the intersecting issues of rights enforcement and protection as part of an overall health policy concern. Historically, CARICOM member states, have not constructively and responsibly addressed the rights concerns of its L.G.B.T citizens in any substantive way. The Bain case, offers the region an opportunity to teach us all about the limits of free expression and thought and the obligations of individuals in a fiduciary relationships that involves vulnerable groups.

The broader concern for the region, is does religious-base bigotry gets a moral stamp of approval to undermine the rights of L.G.B.T citizens in the region and what happens in the struggle for rights acknowledgment which are already in many states constitutions.  The recent debate about Professor Bain termination was argued as an issue of Freedom of Speech in both Belize and Jamaica. Bain, as a result, filed for an injunction on Wednesday to hold on to his job at CHART that he has held since 2001. The article says he is suing on 15 grounds and that Bain is arguing that said disagreement and subsequent termination conflicted with his right to freedom of expression, thought and conscience. He was granted his request for an injunction to prevent his dismissal from Chart on Friday this until his case is heard.

If he is really suing on the basis of "his constitutional rights of freedom of expression and thought," the case has more to do with legal limits on employee behavior than it does on contractual provisions. Interestingly, as I am researching this matter, it does not appear citizens of Commonwealth nations have a protection for "freedom of speech" as contained in the US constitution. Instead, they have laws that protect "freedom of expression and opinion," which may be lawfully restricted to respect the rights and reputation of other persons, national security, public order, public health or public morality. Basically, the distinction limits the actions of people breaching the expression of others to obscenity, defamation and discrimination.

The filing base on "his constitutional rights of freedom of expression and thought," will be interesting as the case moves through the court. In the US, there have been a whole slew of decisions (Garcetti v. Ceballos, Connick v. Myers, Pickering v. Board of Education, Waters v. Churchill, Schumann v. Dianon, Perez-Dickson v. City of Bridgeport, etc.) which uphold that neither employees in the public or private workplace are entitled to First Amendment protection if their speech: is “extraordinarily disruptive” to the workplace or work being done, interfered with the employees job performance, placed strain on his relationships with co-workers, created division within the company, or is insubordinate.

In on case precedent, out of Canada which is extremely interesting and pertinent. "Saskatchewan Human Rights Commission v. Whatcott - The decision rests on a compelling premise: that published statements treating members of vulnerable minority groups as somehow less worthy of dignity or respect – as less human – than the rest of society don’t warrant the same degree of Charter protection as other exercises of expressive freedom." (Please read case link for conclusion)

In another case, Burns v. Dye out of New South Wales is also interesting. Basically a man filed a complaint under the anti-vilification laws (the Australian equivalent to Hate Crimes discrimination laws). The ruling is interesting because it states that just because a homosexual might find the words used offensive, they are not necessarily covered by the law. (I would argue that the absence of such legislation in the Caribbean would equate to the situation where language was not covered by law.) HOWEVER, the court ruled in favor of the complainant because of the public nature of the verbal abuse.


Eweida and Others v. the United Kingdom was a decision that was appealed to the European Court of Human Rights. It ultimately is applicable under 2 provisions. One of the litigants Ms Ladele was employed by the London Borough of Islington, which had a “Dignity for All” equality and diversity policy, from 1992. When in 2004 the Civil Unions law was passed, Ladele, a Christian, refused to conduct civil partnership ceremonies. The court ruled that her view of marriage was not the same as her right to practice her religion and stated that "Islington was not merely entitled, but obliged, to require her to perform civil partnerships" as part of her employment agreement. Another litigant, Mr McFarlane, was a practicing Christian who worked for Relate, a national private, confidential sex therapy and relationship counseling service, as a counsellor from May 2003 until March 2008. He initially had some concerns about providing counselling services to same-sex couples, but following discussions with his supervisor, he accepted that simply counseling a homosexual couple did not involve endorsement of such a relationship and he was therefore prepared to continue. He subsequently provided counselling services to two lesbian couples, which did not consist of sexual therapy, without any problem. However, in 2007 he refused to offer psycho-sexual therapy, on religious grounds, to gay, lesbian and bi-sexual clients. Throughout 2008 employer and employee met many times to resolve the issue. In 2008, McFarlane was dismissed for stating that he would comply with company policy when he had no intention of doing so. McFarlane appealed to the the Employment Tribunal, and the Employment Appeal Tribunal, losing both times as they found he not suffered direct discrimination on the basis of conscience. He had not been dismissed because of his faith, but because it was believed that he would not comply with company policies. With regard to McFarlane's claim of indirect discrimination, the Tribunal found that Relate’s requirement that its counselors comply with its Equal Opportunities Policy did put McFarlane’s religious beliefs at a disadvantage; however, those were legitimized by the aim to provide of a full range of counseling services to all sections of the community, regardless of sexual orientation. The European Court of Human Rights concurred that the decisions limiting religious freedoms were acceptable for the greater good. This case seem to Mirror the issues around Bain and will be interesting to see how the conservative Jamaica court responds in its final decision.

The case of Bain is going to be interesting in its discourse, as there is an issued about intersection of rights which the Court will be ask to define. What has happened in this bi-national case, is an ensuing discourse about the limits of free speech and its impact on vulnerable groups; the limits of employer/employee relations regarding persons in substantial leadership in carrying out the mission of his employer.



Professor Rose-Marie Belle Antoine wrote on the termination of Professor Bain contextualising the issue best: "At the core, it is about a program leader publicly undermining the very program and principles he was mandated to support. By his words and action, he voluntarily aligned himself with and gave endorsement to, a diametrically opposed, unacceptable message on an issue of grave import for the UWI.

The essence of the harm, therefore, more so than the content of the words that Professor Bain spoke, is the fact that an authoritative leader of the UWI, spoke with one voice with a litigant partywhose purpose and objectives are in direct conflict with the policies of CHART and the UWI. This litigant clearly advocates the retention of a discriminatory regime that excludes persons from enjoying rights of equality on the basis of their sexual orientation. Consequently, the testimony instantly became associated with the UWI in deeply negative and enduring ways, placing deep question marks on the UWI’s integrity and on its public commitment, not only to progressive notions of public health and HIV programming, but more fundamentally, to non-discrimination, equal opportunity, justice and human rights.

It is a fact that the elimination of discrimination on the ground of sexual orientation is a key ingredient of the UWI’s HIV programming which Professor Bain had the honour to lead for many years and about which he testified. Anti-discrimination training is a vital part of CHART’s own program, as conceded in the expert testimony. Significantly, too, the mandate of PEPFAR and the Global Fund for Aids, which funds CHART, is “to develop programs aimed at reducing HIV related stigma.”The mission of UWI’s HIV programming, HARP, as well as CHART, from the very beginning, has co-existed with a human rights agenda, a central plank of which is the need to abolish discriminatory laws on sexual orientation. This is incontestable and no one associated with itcan ever claim to have been unaware of this. I can speak authoritatively to this as one who has been intimately involved with the work of the program from its inception. Further, as an HIV & Law consultant who has been actively engaged for over 20 years in policy development across the region, for governments, international organisations and NGO’s, including on important issues of human rights and justice, I understand why this must be so.

Professor Bain’s longstanding and excellent work on HIV and public health, is without question. Ironically, it is precisely because of his high profile that his remarks and chosen association are so damaging to UWI’s reputation and credibility. The retention of Professor Bain in such circumstances threatened to destroy much of the hard-fought gains and trust that UWI has won in the fight against the scourge of HIV and discrimination in general and seriously undermined its own institutional interests. In this context, such testimony cannot be viewed as a mere personal viewpoint, isolated and insulated from CHART and the UWI’s policy position.Indeed, typically, the very reason authorities like Professor Bain are called upon to speak is because of their professional capacity which is inextricably linked with the institution, the UWI. Thus, Professor Bain cannot separate his personal views from these comments that have come to represent the institution that is the UWI, which is why they are viewed as harmful and irresponsible.

While intellectual freedom is to be protected and encouraged, the UWI has a duty to ensure that on issues where it holds itself up as perpetuating a particular policy for the benefit of the community, the persons who are chosen to take the lead on the matter, are demonstrably in accord with that policy. I cannot think, for example, that UWI could ever appoint an academic known to be a racist, or supporting racist ideology, to head Departments devoted to Race Studies or even History Departments, or a person demonstrating that he or she believes or asserts that women are unequal and their place is in the home, to head the Gender Department! There have been several ‘scientific’ studies that claim that blacks are lazy and intellectually inferior, or women the ‘weaker sex’. Does this mean that in the name of academic freedom, the UWI should compromise its core principles of equality and allow its very integrity to be highjacked? I think not.

Professor Bain, as Head of CHART, was in a fiduciary relationship, where one is placed in a position of great trust, which in turn, induces greater responsibility and duties of care. Professor Bain, and by extension, the UWI, with this testimony, violated these fiduciary duties owed to persons living with HIV, the LGBTI community and to the many who look to it for protection and guiding principle.The bottom line is this: Having given this testimony, it would be impossible for this community, the very constituency that he is supposed to serve, ever to trust Professor Bain again. Thus, the UWI had no choice, after careful review, but to change the leadership of CHART. "

The interesting thing is all this, is what will the Jamaican court decide?  We will have to wait, as the drama unfolds. What we do know is that CARICOM member states have failed to uphold the fundamental rights and freedoms of their L.G.B.T citizens in any substantive way. What Bain case may do, is amplify the concerns and needs of L.G..B.T citizens in the region and finally visibilised the fundamentalists movement in the region as well as among CARICOM member state once and for all. Only time will tell.










Source:
Take a Principled Stance http://www.guardian.co.tt/lifestyle/2014-06-04/taking-principle-stand-hiv
R v Keegstra case: http://scc-csc.lexum.com/scc-csc/scc-csc/en/695/1/document.do
Saskatchwan Human Rights Commission v Whatcott: http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web... 
 Burns v.Dye New South Wales:  http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web...
Bain takes UWI to Court
http://rjrnewsonline.com/local/bain-goes-to-court

Bain gets injunction to prevent dismissal
http://jamaica-gleaner.com/latest/article.php?id=53531

Eweida and Others v. the United Kingdom
http://hudoc.echr.coe.int/sites/fra/pages/search.aspx...

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