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In general, all litigation, or the process by which disputes are settled in a court of law, involves strategy or ‘a plan of action designed to achieve a long-term or overall aim’. Typically that plan of action is focused on achieving a desirable result for the individual parties identified in the legal action.  But strategic litigation, sometimes referred to as impact litigation, involves a plan of action that contemplates desirable results for others who may not be party to the legal action.  An individual or an organisation may initiate legal action as part of a strategy or broader plan of action to achieve systemic change rather than an outcome that is desirable only to the individual or organisation.  As the Mental Disability Advocacy Centre explains, strategic litigation involves selecting cases for their impact beyond the individual client.   The Mental Disability Advocacy Centre describes strategic litigation more particularly in this way:

Strategic litigation is a method that can bring about significant changes in the law, practice or public awareness via taking carefully-selected cases to court. The clients involved in strategic litigation have been victims of human rights abuses that are suffered by many other people.

The deliberateness and considered nature of such litigation is a strength, not weakness.  Organisations and people who engage in strategic litigation are typically concerned with changing unjust laws and government policy and publicly exposing injustice.  Strategic litigation has been invaluable to human rights litigation as it requires careful evaluation and planning, which are essential to ensuring human rights litigation is ethically grounded.  Choosing to bring strategic litigation with respect to human rights abuses requires asking questions such as: Is there a legitimate human rights concern that affects persons in the society? Is there a good legal case to make, where and why? What are the range of understandings of the human rights issue that must be considered? Is litigation likely to do additional harm or is there a good chance it can advance the protection of human rights and national conversations on the topic, even if these are difficult ones to have? Should the focus be on having conversations on the issue that do not centre on the court?  

Most simply, it is the human rights norms found in Caribbean constitutions, which are the highest law, or what the late Professor Simeon McIntosh, former Dean of the Faculty of Law and Professor of Jurisprudence called our ‘constitution of rights’.  Litigation related to Caribbean constitutions is a firm part of the democratic constitutionalism in the Caribbean.

Prof McIntosh explained the relationship between the constitution, human rights and judicial review or constitutional litigation. He said:

The member states of the Caribbean Community, including the British Overseas Territories, stand in the tradition of written, democratic constitutionalism: the idea of a democratic polity constituted and regulated by a written fundamental law, founded on the principle of the separation of powers, and containing a basic set of human rights which constrain the exercise of legitimate governmental powers by the agencies of the State, and are legally enforceable in favour of the citizen through the practice of judicial review by an independent judiciary. It is for this reason that the typical Caribbean Constitution may be dubbed a constitution of rights; and the community that the constitution constitutes, a community of rights.

In a speech in the Cayman Islands which has enacted a new Constitution, preeminent Caribbean constitutional law and human rights lawyer, Dr. Lloyd Barnett explained the importance of securing the ‘effective realisation’ of constitutional rights. He said:

In the prevailing conditions of the world, it is of great importance to the preservation of democracy and the protection of human rights that civil society’s awareness of the principles should be strengthened and an effort made not only to provide for their constitutional expression but also to supply the mechanism for their effective realisation.

 


There is a long history of lawyers presenting cases to the Caribbean courts because they believe their clients have experienced breaches of their constitutional and human rights that are also faced by a much wider group.  Although the terminology may not be familiar to many persons, strategically litigating human rights and constitutional cases is not new. Since independence, when our constitutions affirmed human rights norms as higher order rights and established courts as guardians of the constitutions, strategic litigation has been part of the development of democracy and the rule of law in the Caribbean.

Hinds v R is one of the best known and most important of such cases. Hinds v R came very soon after the enactment of the Jamaica Gun Court Act in 1974, which was designed to respond to rising crime rates and firearm offences.  Dr. Lloyd Barnett, Roald Henriques QC and Richard Mahfood QC initiated a case on behalf of five men convicted under the new law. The case brought in the name of the five men reflected wider concerns about the consistency of the new law with the Jamaica Constitution. This was the first case in which the Privy Council held that a law or parts of it were inconsistent with a Caribbean constitution, and therefore void. Its reasoning on separation of powers and judicial independence have made this case very likely the single most important case in Caribbean constitutional law.

In Jamaica, around the same time the Gun Court Act was enacted, the Suppression of Crime Act was also brought into force. It gave the police very draconian powers to limit freedom of movement and privacy to resolve crimes. This law was never challenged, even though conventional wisdom is that some of its provisions were inconsistent with the Constitution. It was decades before the law was repealed. Even today, some bemoan that the unchallenged law helped concretise a culture of policing inimical to full respect for human rights and wonder what difference strategic litigation could have made.

To give another example. In 2003 the Privy Council resolved a case brought on by Jamaican Kurt Mollison, who committed murder at age 16 and was sentenced under the Juvenile Act to be detained ‘at the pleasure’ of the Governor General. Mollison was just one of a number of young people not only in Jamaica but all over the Caribbean sentenced in this way, subject to a decision by a member of the executive (not a judge) as to when they would be released. In 2003 the Judicial Committee of the Privy Council said that sentencing this young person was not a proper function for a member of the executive; it was a job only for a judge.  Even though the Juvenile Act gave this power to the Governor General, that power was inconsistent with the principles of the Jamaica Constitution, and could not stand as is, since the Constitution is the highest law.

The case brought by Sanatan Dharma Maha Sabha, the major Hindu organisation in Trinidad and Tobago, and decided by the Privy Council in 2009, is another example of strategic litigation. The organisation litigated the appropriateness of the country’s preeminent national honour, then the Trinity Cross, on behalf of Hindus and people of religious faiths other than Christianity. The Privy Council decided that the constitutional protection of freedom from discrimination on the basis of religion was compromised by[ a national honour that was a Christian symbol in a multi-faith society that included large numbers of Hindus and Muslims, among others.

 

No, many cases have come about primarily because of the injustice faced by a specific person in a given situation. Yet they have very wide ranging implications.

For example, Jamaican Eunice Fisher was married to a Bermudian and entitled to remain in Bermuda. She was told by immigration officials that her four children who were born in Jamaica, were not entitled to also stay in Bermuda, even though the Constitution of Bermuda states that the step-child of a Bermudan has rights to live in Bermuda. The difficulty was that many laws at that time in the 1970s interpreted ‘child’ to only mean children born to a marriage. Mrs. Fisher’s four children were not. Lord Wilberforce famously rejected the narrow interpretation of child in 1976 and said the fundamental rights provisions in the Constitution must be interpreted in a broad and generous way to ensure that every person enjoys the guaranteed rights, avoiding what has been called ‘the austerity of tabulated legalism’.  Though this case began as one about Mrs. Fisher’s family, it has affected how fundamental rights are understood not just in the Caribbean but all over the world.

The case involving Siewchand Ramanoop in 2005 is another example of one with broad significance that started from a very specific context.  Ramanoop went to his local bar and had an altercation with another man who was a police office, unknown to him. Later than night, the police officer and another officer came to Ramanoop’s house, beat and dragged him out of his house in his underwear and locked him up at the police station where they further abused him. Ultimately the Privy Council held that that Ramanoop’s constitutional rights were gravely infringed and that to vindicate his constitutional rights there was a need for an additional award of damage ‘to reflect the sense of public outrage, emphasise the importance of the constitutional right and the gravity of the breach, and deter further breaches.’ This principle about the constitutional remedy being effective is a central one now in constitutional law.

Yes, the Basic Principles on the Role of Lawyers adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba (27 August to 7 September 1990) states:

14. Lawyers, in protecting the rights of their clients and in promoting the cause of justice, shall seek to uphold human rights and fundamental freedoms recognized by national and international law and shall at all times act freely and diligently in accordance with the law and recognized standards and ethics of the legal profession.

Is it appropriate for UWI teachers to be involved in human rights related litigation in the Caribbean?

The UWI has repeatedly said as part of its own internal guiding principles that ‘The University of the West Indies is committed to providing a conducive learning, working and living environment to ALL its students and staff, irrespective of race, colour, national origin, sex, age, disability, health status, creed, religion, and sexual orientation/preference.’. It also affirms in its Statement of Principles/Code of Ethics for Academic and Senior Administrative Staff that ‘the University teacher has an important role to play in the development of the community.’ The UWI’s criteria for promotion includes not just research, publication and teaching but public service. Public service can include exposing injustice and raising public awareness with respect to laws that are inconsistent with the constitutions. In 2013, at the Graduation on the Cave Hill Campus, the UWI Chancellor Sir George Alleyne noted the importance of research and publications in areas like human rights coming together with practice and service and he welcomed efforts by UWI teachers to link the two.

What determines the cases U-RAP litigates?

The main focus of litigation is ensuring, as the Jamaica Constitution puts it in section 13, that the state ‘promotes universal respect for, and the observance of, human rights and freedoms’ and that all persons are entitled to preserve for themselves and future generations the fundamental rights and freedoms to which they are entitled by virtue of their inherent dignity’.

Thus far, U-RAP has determined its involvement based on the importance of the human rights issue, the potential value of litigation in securing respect for human rights, the likelihood that others will litigate the issue, and its capacity at that given time. Invariably we consider cases that engage the question what is a society’s vision of justice and equality for all. U-RAP has not taken a policy decision to focus on LGBT cases alone. As its two current cases come to a resolution, U-RAP expects to engage with other types of human rights concerns through litigation and research.

Currently, both of U-RAP’s cases involve post slavery nineteenth century criminal laws in the Caribbean. Many persons involved in making Caribbean constitutions expected that after independence, existing laws would be evaluated to determine if they were consistent with the new constitutional norms as an exercise undertaken by the executive and legislature. In general, this has not taken place and a range of such laws dealing with issues such as emergency powers, punishment of juveniles, and flogging have instead come to the courts for such evaluation. There was a strong emphasis during the post slavery period on controlling Blacks and Indians through vagrancy laws that focussed less on what you did and more on the kind of person you were deemed to be.

Both the Belize and Guyana cases involve laws that would be difficult or impossible to enact today. Section 53 of the Belize Criminal Code is not a buggery law. It is far more extensive. It criminalised carnal intercourse against the order of nature. Up until 1944 the Belizean law only criminalised non-consensual carnal intercourse against the order of nature. The crime now extends beyond anal sex to other sexual acts (except vaginal intercourse) involving the male organ. Section 53 criminalised for example sex between a married couple involving the woman’s hands and the man’s penis. It does criminalise sex between men, but it also criminalised a good deal of the sex married persons and other heterosexual engage in. That said, the symbolic censure of this law is very closely tied to same-sex sex. The question of what impact, if any, does an under-enforced criminal law related to same-sex sex have is often asked. A 2001 publication outlining empirical research by Prof. Ryan Goodman showed how even under-enforced criminal laws related to same-sex sex had very significant negative social impact on gays and lesbians in South Africa. The Orozco case in Belize evolved from research at the Faculty of Law UWI, including student research papers, exploring the relevance and application of colonial laws in in postcolonial societies and their links to constitutionality and good governance. One theme taken up by students was the criminalization of consensual same-sex sexual activity, and the impacts this had on dignity and equality.

In Guyana, the summary offence of cross dressing for an improper purpose is equally difficult to justify today. This vagrancy law is vague and is found in a section covering 49 separate minor offences that focus on conduct primarily associated with the urban poor. They include flying a kite in a public way, beating a mat in a public way and grooming an animal on a public way. The Guyana case was filed in response to a series of arrests of several trans persons in Georgetown, Guyana, who were subjected to violence and abuse at the hands of both private citizens and the police for cross-dressing in public. Today, those arrested for cross-dressing are invariably poor transgender persons traversing public spaces. In a small study by anthropologist Christopher Carrico in Guyana, he found that these trans persons routinely faces threats of arrest, lack of due process once arrested and violence during detention.

The UWI has repeatedly said as part of its own internal guiding principles that ‘The University of the West Indies is committed to providing a conducive learning, working and living environment to ALL its students and staff, irrespective of race, colour, national origin, sex, age, disability, health status, creed, religion, and sexual orientation/preference.’. It also affirms in its Statement of Principles/Code of Ethics for Academic and Senior Administrative Staff that ‘the University teacher has an important role to play in the development of the community.’ The UWI’s criteria for promotion includes not just research, publication and teaching but public service. Public service can include exposing injustice and raising public awareness with respect to laws that are inconsistent with the constitutions. In 2013, at the Graduation on the Cave Hill Campus, the UWI Chancellor Sir George Alleyne noted the importance of research and publications in areas like human rights coming together with practice and service and he welcomed efforts by UWI teachers to link the two.

The main focus of litigation is ensuring, as the Jamaica Constitution puts it in section 13, that the state ‘promotes universal respect for, and the observance of, human rights and freedoms’ and that all persons are entitled to preserve for themselves and future generations the fundamental rights and freedoms to which they are entitled by virtue of their inherent dignity’.

Thus far, U-RAP has determined its involvement based on the importance of the human rights issue, the potential value of litigation in securing respect for human rights, the likelihood that others will litigate the issue, and its capacity at that given time. Invariably we consider cases that engage the question what is a society’s vision of justice and equality for all. U-RAP has not taken a policy decision to focus on LGBT cases alone. As its two current cases come to a resolution, U-RAP expects to engage with other types of human rights concerns through litigation and research.

Currently, both of U-RAP’s cases involve post slavery nineteenth century criminal laws in the Caribbean. Many persons involved in making Caribbean constitutions expected that after independence, existing laws would be evaluated to determine if they were consistent with the new constitutional norms as an exercise undertaken by the executive and legislature. In general, this has not taken place and a range of such laws dealing with issues such as emergency powers, punishment of juveniles, and flogging have instead come to the courts for such evaluation. There was a strong emphasis during the post slavery period on controlling Blacks and Indians through vagrancy laws that focussed less on what you did and more on the kind of person you were deemed to be.

Both the Belize and Guyana cases involve laws that would be difficult or impossible to enact today. Section 53 of the Belize Criminal Code is not a buggery law. It is far more extensive. It criminalised carnal intercourse against the order of nature. Up until 1944 the Belizean law only criminalised non-consensual carnal intercourse against the order of nature. The crime now extends beyond anal sex to other sexual acts (except vaginal intercourse) involving the male organ. Section 53 criminalised for example sex between a married couple involving the woman’s hands and the man’s penis. It does criminalise sex between men, but it also criminalised a good deal of the sex married persons and other heterosexual engage in. That said, the symbolic censure of this law is very closely tied to same-sex sex. The question of what impact, if any, does an under-enforced criminal law related to same-sex sex have is often asked. A 2001 publication outlining empirical research by Prof. Ryan Goodman showed how even under-enforced criminal laws related to same-sex sex had very significant negative social impact on gays and lesbians in South Africa. The Orozco case in Belize evolved from research at the Faculty of Law UWI, including student research papers, exploring the relevance and application of colonial laws in in postcolonial societies and their links to constitutionality and good governance. One theme taken up by students was the criminalization of consensual same-sex sexual activity, and the impacts this had on dignity and equality.

In Guyana, the summary offence of cross dressing for an improper purpose is equally difficult to justify today. This vagrancy law is vague and is found in a section covering 49 separate minor offences that focus on conduct primarily associated with the urban poor. They include flying a kite in a public way, beating a mat in a public way and grooming an animal on a public way. The Guyana case was filed in response to a series of arrests of several trans persons in Georgetown, Guyana, who were subjected to violence and abuse at the hands of both private citizens and the police for cross-dressing in public. Today, those arrested for cross-dressing are invariably poor transgender persons traversing public spaces. In a small study by anthropologist Christopher Carrico in Guyana, he found that these trans persons routinely faces threats of arrest, lack of due process once arrested and violence during detention.

Some issues like the question of the criminalisation of same-sex sex are very controversial ones throughout the Caribbean. Notwithstanding, they raise important questions as to the meaning of human dignity, privacy and equality. There is strong consensus in international human rights law that these forms of criminalisation violate the guarantees in multiple human rights treaties.

Public opinion on the retention of laws dealing with buggery and the unnatural crime is strong, though not monolithic. Most surveys show that Caribbean people support the retention of laws criminalising same-sex sex.  But the CADRES surveys show less people supporting retention over time in Barbados where the survey has been repeated over many years. The CADRES surveys also show in Barbados, Trinidad and Tobago and Guyana that at the same time most persons support the retention of the law, they also by substantial majorities thought that discrimination on the basis of sexual orientation was unacceptable. This sentiment of non-discrimination has been publicly expressed at various points by Prime Ministers and various government ministers in such jurisdictions as the Bahamas, Barbados, Belize, Jamaica, Guyana, Trinidad and Tobago, St. Kitts and Nevis. A 2011 survey by Noel Cowell of undergraduate students at UWI Mona found that 82.9 per cent felt homosexuality was morally wrong, yet 62.4 per cent said homosexuals should be treated just like anyone else in the workplace. A 2012 study by Dr. Keon West, a Jamaican psychologist, and Dr. Miles Hewstone found that social interaction between the Jamaicans in their study and gay men led to a reduction anti-gay sentiments.

Constitutional litigation and interpretation do not avoid public debates, they can strengthen and better inform them. Litigation offers additional dimensions to public conversations. Constitutional litigation requires lawyers, judges and the public to address their minds precisely to the issues at stake in relation to the law. Those questions include: Should the law criminalise sex freely chosen between consenting adults? Or should it be a crime for an adult, whether a man and a woman or a man and a man, to choose to have anal sex or other forms of sex that amount to carnal intercourse against the order of nature? To say it is a crime means the police should be able to arrest you and on conviction you should be liable to imprisonment. Can the absence of a distinction between consensual and non-consensual sex be justified in criminal law, and can we justify the conflation of sex between consenting adults and sex with an animal?

Ultimately, the resolution through courts must ask the question, what norms and values have we given priority to as a society and entrenched in our constitutions and what do they mean. Though courts take the lead in interpretation, these are important national and regional conversations. Lord Hoffmann explains that judges must translate the ‘high generalities of the constitutional text’ to concrete problems.

The judges are the mediators between the high generalities of the constitutional text and the messy detail of their application to concrete problems. And the judges, in giving body and substance to fundamental rights, will naturally be guided by what are thought to be the requirements of a just society in their own time. In so doing, they are not performing a legislative function. They are not doing a work of repair by bringing an obsolete text up to date. On the contrary, they are applying the language of these provisions of the Constitution according to their true meaning.

Even where human rights are clearly implicated, judges must also ask in a very disciplined way are there very good reasons in the public interest and in a democratic society to limit the guaranteed rights in this instance. Are limits necessary for some public goal? Are the measures taken by the state or the law rationally connected to that good reason or public goal and has the state or the law ensured that in addressing the legitimate public interest that it goes no further than needed to meet that goal? These are questions to be taken up and considered not just by those presenting arguments in court but by ordinary citizens in their conversations in the streets, at home, schools and churches. What judges decide will ultimately be analysed and reviewed through appeals not just in courts but in public. Judges’ interpretations are a very important part of our system of constitutional governance but it is still a part of broader dialogue about what rights mean in any society.