On a weekend that saw the election of an openly gay son of an immigrant as the head of the ruling Fine Gael party of Catholic Ireland – and so in line to be confirmed as Prime Minister when their Parliament reconvenes on June 13, Guyana’s LGBT community remains in a quandary about their right to engage in same sex relations. For over a decade, the discriminatory nature of laws falling under “offences against Morality”, such as: “Everyone who commits buggery… shall be guilty of felony and liable to imprisonment for life” remains hanging like a modern day Sword of Damocles over the heads of LGBT citizens, even as the Government has promised to adhere to international covenants to which it has signed on.
In 2010, after information was presented by Guyana to the United Nations (UN) General Assembly Human Rights Group, Government spokesperson Gail Teixeira noted: “Recommendations 70.47 to 70.53 refer to decriminalisation of consensual same sex relations and ending discrimination against gays, lesbians, bisesexuals, and transgenders… Guyana noted these recommendations and voluntarily commits to hold consultations over the next two years. Based on the outcome of this democratic process these will be reflected in its domestic laws.”
In 2012, the People’s Progressive Party Government attempted to establish a Special Select Committee to conduct hearings on the subject but against strident protests by the People’s National Congress (PNC), the matter was shelved. Last month however, the PNC-led A Partnership for National Unity/Alliance For Change Government submitted a letter on the issue to the Inter-American Commission on Human Rights (IACHR). It claimed there remained mixed views on the prohibition of discrimination on the basis of sexual orientation and sexual identity and repealing of the laws to decriminalise homosexuality and “it was recommended, that the matter be taken to a vote, where the people of Guyana will decide by a referendum on these matters.” The Government was now rejecting its predecessor’s position that the people’s representatives in the National Assembly would make the decision to decriminalise, and would now go directly to the people.
Ignoring Guyana’s status as the only country in undeveloped South America where homosexual acts remain illegal, Foreign Minister Carl Greenidge noted that in the developed OECD countries, social change has made “certain types of behaviour” acceptable, “But” he argued, “this is Guyana and in these countries you have a different mix of not only ethnic groupings, but you have religious groupings.” Not surprisingly, members and supporters of the LGBT community are outraged and see this move as a form of “forum shopping” that is unquestionably “outcome determinative”. The Government believes the majority of Guyanese are against the legalisation of same sex relations.
It is very unfortunate that while Guyana follows precedent in law from Britain, it has stubbornly refused to do so on the law on same sex relations which was imposed by that country in the 19th century. But the British laws were revised around the same time as our Independence was granted. A decade before the UK Government-sponsored Wolfenden Committee on homosexual relations and prostitution had submitted its report. It made a crucial distinction between private actions and public order, which subsequently dominated the enforcement of morality that is at the base of the criminal law. Wolfenden took up the utilitarian proposition of Bentham and JS Mill that it should not be the function of the law to regulate private behaviour that did not harm anyone else; however distasteful others might find it. Its role was to establish the framework of public order.
In the famous subsequent HLA Hart-Devlin debate that centred on Wolfenden’s recommendations, much of the present Guyana Government’s position was represented by the jurist Lord Devlin and while no one would deny that the “voice of the people” does matter, the position articulated by Oxford Professor Hart has carried the day. The 1967 Sexual Offences Act decriminalised same sex relations in England and Wales.
From that time, the moral right of the individual rather than society became determinative of what went on in private. When will Guyana catch up?
