EOA declared unconstitutional

The reason for doing this was purely political. One of the UNC’s planks has always been racial discrimination, and the party when in office made the EOA Bill a priority. Whether bias can actually be removed by laws is a larger issue, but this wasn’t the real point of the Bill. The real point was to make racial discrimination a political issue and to be seen to be doing something about it. The proof of this is demonstrated by the Act explicitly denying protection from discrimination to homosexuals — a clause which no doubt finds majority support from the populace, but which contradicts the very principle that informs such legislation.

Now that the Court of Appeal has struck down the Act, it is inevitable that the UNC will spin this decision as proof that the State and the courts support racial bias. In fact, the decision is proof only of the UNC’s predilection, when it was in office, to try to ride roughshod over citizens’ fundamental rights and freedoms. Moreover, Justice Ivor Archie, in delivering the judgment, reserved some choice words for the present PNM administration. "I would like to emphasise that it can hardly be conducive to good governance and proper public administration for the Executive to do nothing about a statute which it views as unconstitutional. Efforts should be made to have it amended or repealed," he said.

In other words, the PNM administration, rather than taking this bull by the horns, decided to put the onus on the courts. No doubt this was good political strategy, but Justice Archie correctly zeroed in on the typical pusillanimity of our politicians. The Court based its judgment on the Act violating the doctrine of the separation of powers and containing provisions which are inconsistent with certain rights and freedoms guaranteed by the Constitution. One such right is contained in Chapter 1, Part 4 (i) of the Constitution: "freedom of thought and expression." It must also be noted that the preamble to this section explicitly guarantees the rights which the EOA supposedly wanted to make law: "It is hereby recognised and declared that in Trinidad and Tobago there have existed and shall continue to exist, without discrimination by reason of race, origin, colour, religion or sex, the following fundamental human rights and freedoms."

Now it is true that, in practice, some of these rights are violated and individuals may not have the money or the inclination to pursue the matter. It is known, for instance, that certain clubs do practice discrimination which, it may be argued, is based on race. There may also be instances of private schools practising religious discrimination. But the question of how a society outlaws discrimination, and how it enforces such laws, is a complex one.

A government has to find that balance between making acts of discrimination illegal and preserving the individual’s right to be biased and, in certain circumstances, even express such bias. The EOA signally failed to attain this balance, which is why it had to be struck down. In the final analysis, however, reducing bigotry is a matter of culture rather than law. And that is the real challenge facing our society.