On the proposed referendum

By Ulele Burnham, Alissa Trotz and Andaiye

In its May 22 edition, the Guyana Chronicle carried an article titled “Legalising homosexuality no straightforward matter, says Greenidge.” The article confirmed that the government of Guyana, in a formal letter to the Inter-American Commission on Human Rights (IACHR) following the 161st Ordinary Period of Sessions, announced its intention to hold a referendum to determine whether the laws which criminalise same-sex intimate acts should be struck down. According to the Chronicle article, the government contended in that letter that it was deemed “unfit” for the National Assembly – the primary law-making body in the country – to decide whether to repeal or maintain laws which have significant effect on the rights of a number of its citizens.

We live in times where referenda are increasingly used as an apparently democratic means either of entrenching authoritarian measures or attempting to avoid complex questions by foisting them onto a hapless population in over-simplified form:  In Turkey, a wide range of draconian powers were reserved to an increasingly authoritarian state by popular vote. In the UK the EU referendum, set to lead to Britain’s exit from the EU, was characterised by false promises and expectations. UK citizens, including large swathes of the political class, remain unclear about what the consequences of Brexit will actually be. It appears to be rapidly becoming an outdated view that elected parliamentarians in a parliamentary democracy (the clue is in the word “parliamentary”) ought to be charged with making or un-making law via a process of debate in parliament. If there were one area in which law-making should be reserved to parliament, it is, in our view, law which concerns basic constitutional rights.  The difficulty at present is that neither the government nor some vocal sections of the population appear to recognise that repealing laws which discriminate against lesbians, gay-men and transgender persons is a constitutional rights issue.

For starters, the discussion has proceeded, unhelpfully, with the use of misleading terminology. “Homosexuality” is perhaps best characterised as a sexual and/or emotional orientation towards persons of the same-sex. It will often be described as an internal or inherent disposition and is no more capable of criminalisation than a person’s ethnicity or gender. There are laws which criminalise intimate sexual acts such as “buggery”, and while the victim can be male or female, admittedly such offences disproportionately target male homosexuals. Conversely, laws targeting lesbians are very rare, and for intimate acts between women to be criminal they must either be done without consent or in public. This is the tangled inheritance of our colonial past, where the obsession with British lawmakers was with male homosexual acts and not female, and which was left largely untouched by extensive reforms in 2010. The result is that certain types of sexual activity are criminal and, by their nature, tend to disproportionately affect male homosexuals. But this is a far cry from criminalising all same-sex intimate acts and particularly those between women, and it certainly does not criminalise the orientation itself. Whatever the laws say, biology, anthropology, sociology, history – in short, every conceivable scientific and social-scientific discipline tells us that homosexuals have always been around and will continue to be around irrespective of unenlightened attempts to criminalise them.

This week’s column will address two issues in relation to the government’s proposal. The first is the question of fundamental rights and the second relates to the ethics and efficacy of referenda.

In countries in which written constitutions exist, fundamental rights (of all, including despised minorities) are governed by the constitution and not by popular attitudes or prejudices. If the aim of a constitutional parliamentary democracy is to ensure that the rights of all citizens are guaranteed, it is easy to see why referenda would be a blunt instrument for ensuring that minority rights are secured. The tendency towards the use of referenda has often allowed governments and others to suggest that the will of the “majority” is the same as the “democratic” will. If the government abdicates its responsibility to protect those who are different or other, and asks the majority to decide by answering a yes or no question, where are the views of the minority “democratically” reflected? Next week, we will focus on Guyana’s multiple obligations under both domestic and international law which require us not to criminalise same-sex sexual activity, an argument that has been expressed simply and clearly by the Guyana Justice Institute’s press release last week.

Rights should not be put to the popular vote

The notion of putting minority rights to the popular vote is potentially dangerous, and absolves the government of responsibility for discharging its primary task: to provide leadership. There would seem to be a rare

symmetry between the current administration and its predecessor. After all, whatever he now opportunistically claims, we would not have been here had President Jagdeo assented to non-discrimination legislation unanimously passed by the National Assembly in 2000 –  following religious opposition, he withheld his signature, and the Bill expired after Parliament was dissolved to make way for elections in 2001. The Bill was reintroduced in Parliament in 2003 and passed, but the provision on sexual orientation was deleted.

The debates around the appropriate forum for social reform have traditionally been confined to the appropriateness of judicial versus legislative intervention. Even the most hard-core conservatives assume that legislatures have a democratic mandate to act (and the dispute is more often about the undemocratic aspect involved in unelected judges striking down laws). In this instance, our government has gone even further and would put a matter of social reform to the populace at large, arguably a significant abandonment of their duty to govern. Taking issues of rights’ protection to the electorate carries significant risks, for history is replete with examples of how majoritarian political processes have trampled on the rights of vulnerable minorities. In other words, the majority is not always right. Often, these abuses occur because other institutions, including the judiciary, are cowed and unable to stand up to a strong executive.

Democracies in both the South and the West have underscored the necessity of discerning legality, not by some positivist notion of popular opinion, but by higher, normative standards informed by constitutional values. In 2015, Justice Kennedy of the US Supreme Court in delivering the majority opinion in a case challenging the constitutionality of prohibitions against same-sex marriage, pointed out that ‘when the rights of persons are violated, “the Constitution requires redress by the courts,” notwithstanding the more general value of democratic decision-making.’ On the relevance of the popular vote, he explained that ‘An individual can invoke a right to constitutional protection when he or she is harmed, even if the broader public disagrees and even if the legislature refuses to act.  The idea of the Constitution “was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.”  This is why “fundamental rights may not be submitted to a vote; they depend on the outcome of no elections.”  [citations omitted]

In similar vein, Chaskalson P, President of South Africa’s prestigious Constitutional Court, also explained the importance of limiting the role to be played by public opinion in a constitutional democracy in the case of the State v Makwanyane (1995). In response to submissions that public opinion was not in favour of abolishing the death penalty he said: Public opinion may have some relevance to the enquiry, but in itself, it is no substitute for the duty vested in the Courts to interpret the Constitution and to uphold its provisions without fear or favour.  … the issue of the constitutionality of capital punishment cannot be referred to a referendum, in which a majority view would prevail over the wishes of any minority.  The very reason for establishing the new legal order, and for vesting the power of judicial review of all legislation in the courts, was to protect the rights of minorities and others who cannot protect their rights adequately through the democratic process.  Those who are entitled to claim this protection include the social outcasts and marginalised people of our society. It is only if there is a willingness to protect the worst and the weakest amongst us, that all of us can be secure that our own rights will be protected.’

It is no accident that the Guyana Constitution does not require a referendum to repeal ordinary criminal offences such as the prohibition on buggery; nor does it require a referendum to amend the fundamental rights provisions. This means that our legislators, and not the public, have been expressly conferred with the power by the Constitution to act on this issue.

The problems with referenda

Compounding the scandal of submitting the issue of rights to a popular vote are the inherent problems with referenda. Experience has shown that a referendum is a largely ineffective means by which to gauge informed popular opinion.

In their 2015 book, Fundamentals of Caribbean Constitutional Law, Tracy Robinson, Arif Bulkan and Adrian Saunders reveal that except for the referendum held in Bermuda last year on same-sex marriage, referenda across the Caribbean have had consistently low voter turnouts and have generally rejected reform initiatives. They point to the 2002 Bahamian referendum, when Bahamian voters were given about a month to consider several reforms to the constitution that required a bare majority in a referendum vote. The proposals included prohibiting discrimination on the basis of gender and the removal of discriminatory citizenship provisions from the Bahamas Constitution. Also included were reforms to introduce an independent boundaries commission and independent parliamentary commissioner and related to the teaching service commission. The result was a resounding no vote to the incorporation of gender equality in the Bahamas Constitution. Ironically, the vote which denied women equal and full access to citizenship was regarded as a victory for democracy and participatory governance.

The Ralph Gonsalves administration in St Vincent and the Grenadines suffered a similar fate in 2009 in its effort to replace the 1979 independence constitution, even though it adopted a more extensive process of consultations. A referendum vote with approval by at least two thirds of the voters was needed to introduce a new constitution that, among other things, would have ushered in a republican form of government and made it easier for the government to de-link from the Judicial Committee of the Privy Council. Only 43.13 per cent of voters approved the draft Constitution, far short of the two thirds needed. Voter turnout was much lower than in preceding and subsequent general elections which Gonsalves won. Only 54 per cent of voters participated in the referendum, while voter turnout in the 2005 and 2010 elections was between 62 and 64 per cent. (ibid)

In assessing these and other experiences, Robinson et al argue that even though referenda are meant to be the most direct form of democracy, their democratic credentials are questionable for a number of reasons. Since voter turnout tends to be lower than in elections, referenda are often not a true reflection of the wishes of the people. The historical apathy of Guyanese on social (as distinct from political) issues compounds this possibility locally, with the added danger of the issue being hijacked by the most vocal opponents.

Another problem inherent to referenda is that the questions, couched as they usually are in simplistic form  and requiring a yes or no answer, fail either to capture subtlety or to leave room for compromise. A referendum that asks simply whether same-sex intimate acts should be decriminalised would not capture the nuance present in the 2013 CADRES poll, which revealed that attitudes to homosexuality in Guyana cannot be neatly categorised as favourable or unfavourable. CADRES suggests that there are fundamental misunderstandings among Guyanese regarding basic facts about homosexuality which impact negatively on attitudes. For example, there are erroneous beliefs among Guyanese about homosexuality being a choice and the ability to ‘cure’ or ‘correct’ it by religious teaching. These  views that have been conclusively rejected by credible experts in psychology and psychiatry. A referendum on this subject, however, could not possibly address such profound misconceptions, and like the 2002 Bahamian experience or that of 2016’s Brexit vote, an ill-informed populace would instead be asked to decide a complex, nuanced and ultimately constitutional issue on the basis of emotion, instinct and possible prejudice.

In a short Facebook post, perhaps inadvertently Guyana’s First Lady, Mrs. Sandra Granger zeroed in on all the key problems with this proposal: Guyana’s need to conform to its international HR obligations; the right to happiness and dignity enjoyed by members of the LGBT community; and the misplaced official zeal of a referendum on same-sex consensual relations when our society is plagued by horrific social ills including rape, Domestic Violence and trafficking in person. On this issue at least, we might decry the fact that she has no official constitutional role.

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