On this, the first Sunday of the new year, I wish a happy, bountiful and productive 2016 to all readers. I recall, from my ever-receding youth, a politician who would take out a newspaper ad at this time of the year. It went, “To all those who wish me well, and to all those who lend me hell, A happy Christmas and a prosperous New Year”. I should be so minded now to repeat these sentiments.
As we neared the end of the year just past, there seemed to be in the news a litany of plaints from various individuals and organizations, all of whom were of the considered opinion that they were not getting their just deserts from officialdom; in fine, that they were being denied their elemental rights to dignity and autonomy -to be recognized as human beings or entities with the capacity for self-determination.
For instance, one individual, identified in another section of the local press as “a Muslim woman” only, protested that compliance with the requested removal of her hijab in order to be photographed for a Barbadian identification card would entail an infringement of the practice of her religion that requires women to cover their head in public. Almost immediately thereafter, a spokesman from the Rastafarian House of Nyabinghi made the identical objection on behalf of that group’s female members.
While the basis of these objections was more hinted at than expressed, the stated intention of the parties to seek legal counsel suggested a claim of the infringement of their right to freedom of conscience guaranteed by section 19 of the Constitution. This includes, among other things, the right to “manifest and propagate his (or her) religion or belief in worship, teaching, practice or observance…”
Increasingly, as the Western world becomes more secular in outlook, these types of conflicts between religious freedoms and state requirements are likely to proliferate. We recall the brouhaha in the US last August when Ms Kim Davis, a Kentucky county clerk, sought to defy a federal court order that she issue marriage licences to same-sex couples, claiming to be acting “under God’s authority” even though the Supreme Court had adjudged that the right to such marriages is guaranteed under the US Constitution.
However, in a less notorious matter on a similar point in India last February, the Indian Supreme Court upheld the termination of a government employee for reasons of his bigamy, ruling that the fundamental right to religion in their Constitution did not include practices which ran counter to public order, health and morality.
Refuting his argument that the rule prohibiting bigamy by public servants violated his right freely to practice his religion, the Court stated that a sharp distinction had to be drawn between religious faith and belief and religious practices –
“What the State protects is religious faith and belief. If religious practice run counter to public order, morality or health, or a policy of social welfare upon which the State has embarked, then the religious practices must give way before the good of the people of the state as a whole…”
Given the threatened litigation, it would be imprudent of me to write further. Nevertheless, in light of the reported claim of a member of the local Police Force to the right to wear her hair in “locks” in defiance of the relevant dress code; a claim which, though not based on reasons of religious practice, might very well have been -the issue may soon arise in other contexts.
Intimate partner violence and the same sex relation
A report in last Monday’s issue of the Barbados Advocate informed that China had passed its first domestic violence law that will criminalize both physical and psychological abuse in the family. However, while this law will apply to heterosexual partners in conventional unions as well as to those who cohabit [here, “unions other than marriage”], it will not apply to those in same sex relationships.
Some may recall that this identical matter flickered for a while at some stage last year when Barbados was contemplating the reform of its similar statute. The chief protagonists of the dispute then were the rivals for a southern constituency. While one argument was based on the ostensible reality that there is violence between such couples, the antithesis appeared to be a reluctance to proscribe such conduct in that context for fear of giving sanction to same-sex marriage.
It is at least intellectually pleasing that this amazing leap of logic does not attend the Chinese reasoning, although the reason reportedly offered, that this form of violence have not yet been discovered among homosexuals does seem incredible. What makes it even more so is that China does not appear to be as legally hostile to homosexuality as some other jurisdictions, although as the report sates, it is nor likely to legalize same sex marriage anytime soon.
I suppose that it comes down to a matter of whether we are prepared to accept that the intendment of the statute is decidedly to proscribe violence between partners in all intimate relationships and not merely to protect those in the relationships that we might consider palatable, leaving all others to hold their corner. For the uninitiated, it is not legally possible to recognize the institution of same sex marriage by the side wind of domestic violence protection.
Freedom of association and anti-union discrimination
The third matter concerns a rather unusual circumstance whereby the Guyana Trades Union Congress [GUTC] is expressing dissatisfaction with the fact that the governing administration there announced bonuses for public servants without having consultations with their workers’ representatives. According to the GUTC, this action constitutes a breach of the law.
While the Minister of Governance has asked to see the specific area of law that made consultation with the GUTC mandatory, the federation has cited Article 147 of the Guyana Constitution and section 23(1) of the Trade Union Recognition Law (sic) in support of its position.
While section 147 of the Constitution does speak to the state guarantee of freedom of association including the freedom to belong to a trade union for the protection of the person’s interests, I am not persuaded that this is the freedom of association to which the GTUC intends to lay claim. Section 23(1) of the Trade union Recognition Act 1997, however, does provide for obligatory compulsive bargaining with unions that have been granted a certificate of recognition and, as the GTUC asserts, criminalizes a refusal to do so in subsection (3).
It is my view that the freedom of association to which the GTUC perhaps intended to refer is that to be found in the jurisprudence of the International Labour Organisation; freedom of association for trade union purposes. This is located principally in Conventions 87 and 98 of the ILO. And while anti-union discrimination may usually be found in actions detrimental to the interests of union members such as dismissal, demotions or other such prejudicial acts based on their union membership or activity, it may also be found generally in a refusal by an employer to bargain collectively or to consult on matters relevant to terms and conditions of work. A unilateral increase in an employee’s salary may implicate this holding.