MARTINEAU: ACT BIASED AGAINST GAYS

Gays (homosexuals) and lesbians are being discriminated against in the Equal Opportunity Act (EOA) while other sections of the act also infringes the Constitution, said attorney Russell Martineau SC yesterday. 

Martineau argued that the Act has singled out gays and lesbians as not being entitled to protection under the EOA. He further made the point that an Act purporting to protect citizens against discrimination was itself discriminating against a particular group of human beings. Former attorney general Ramesh Lawrence Maharaj has filed a constitutional motion complaining that Government’s failure to set up an Equal Opportunity Commission and a Tribunal, as required by the Act, is denial of protection of the law. He filed the motion on behalf  of 21 citizens. Martineau also argued that the Act infringes citizens’ rights to enjoyment of their property and  freedom of speech among other rights. Martineau argued before Justice Gregory Smith in the Port-of-Spain Fourth Civil Court, that the Act itself is unconstitutional and many of its section infringes the Constitution which is the supreme law of the land. The Act , he argued, is unconstitutional because it was not passed by the special majority in parliament and several of its sections go contrary to the rights and fundamental rights enshrined in the Constitution.

Although Martineau argues that because of the defects of the Act the present Attorney General intends to rewrite a new  bill for Parliament, he called on the Court to make a pronouncement on the unconstitutionality of the Act and its sections. To do less is to undermine the Constitution and rule of law, he warned. He argued that “we” subscribe to equal opportunity to all and it gives us a sense of pride regardless of our age, gender,  colour or sexual orientation.  He emphasised that  “here we are dealing with the dignity of man, human beings,” and if gays and lesbians are made outcast of the EOA, then tomorrow it could say any other group. He recalled the Nazi discrimination against the Jews during World War II. He contended that being a gay or lesbian may not be the individual’s fault but that they may have been created that way. Nevertheless, to exclude them from the act is a policy statement from Parliament.  He suggested that people could discriminate privately but Parliament must not. He suggested to the judge that even if the Act is allowed to pass by the special majority it could still be thrown out as being not justified in a democratic country.

Martineau, instructed by  Deborah Peake, warned that the Constitution guarantees equality of treatment to all and no subsidiary law can take that away. Citing another section of the EOA, Martineau argued that it tends to take away freedom of speech if you make comments that are “reasonably likely to offend or humiliate” a person. He said if that happens then many calypsonians, especially those who make political commentary,  will be in trouble. He argued that even politicians in the Commonwealth are being allowed “certain freedom of speech” which the courts are calling “qualified privilege.” Hearing will continue on a date to be fixed in December.