Presentation by Hon Ravi Dev, MP - 27 April, 2003

Minority Rights in a Secular Democracy 

Transcript of presentation made at a forum organised in Georgetown, Guyana on 27 April, 2003 to discuss “Sexual Orientation as a Fundamental Right”

 

"Well, I’d like to thank Mr. James for that introduction and to also thank Vidya for inviting me to this forum. While there is a lot of stereotyping in this world. I think ROAR is stereotyped also. So it’s good to be breaking out of whatever those stereotypes might be to be able to comment on some wider issues.

I would also like to welcome this opportunity to be part of this project, so to speak. Where we as a people can begin to discuss and have discourses about our society and the nature of our society because ultimately a society has to have the willingness to be a community held together by common values. But values are a bit amorphous sometimes because values do change and that is one of the points I wish to make. But they change based on society grappling with its circumstances.

They change based on society grappling with its circumstances and its own particular problems. So that one has to at least be willing to keep an open mind, be honest and accept that there might be the need for change and for or us to have a harmonious society we have to have this willingness to look at other views.

Now, the topic I was given was The Importance of Minority Rights in a Secular Democracy. Now, the first thing I would like to talk about is that we’re talking of the possibility of changing our constitution to include in the list of fundamental rights, the right to be of whatever sexuality we want to be but the important point is we want this right to be enshrined in the constitution as a fundamental right. I think, first of all, therefore we should talk about the whole point of fundamental rights being part of a constitution; to look at it in its historical nature so that we can begin to see whether or not it applies to us. Because one of the problems we have found in terms of defining our self as a society in other contexts is that many times we take some pre-figured notions and simply try to instill within us and it creates problems. So this notion of constitutionalism and fundamental rights, first of all we must acknowledge that it was a historical process that first and foremost attempted to control the state vis-à-vis what it could do to individual citizens. So when we talk of a body of fundamental rights, it was an area that the people in the Western democracies attempted to carve out that where the state could not impose its will and that is important because somehow we have this idea that these are some things that can be imposed upon even within private relations and that’s not the case. If we’re talking of installing fundamental rights in our constitution as to putting a barrier as to what the State can or can’t do. I want to make very clear, all of these rights historically developed out of a fear and a reality of a coercive state. Now, most of these constitutions and we in Guyana are the inheritor of one these constitutions from a Western state enshrine quote unquote fundamental rights. The guarantee that was given to us cannot be infringed upon, laws were passed therefore that made it illegal for there to be unequal treatment, discrimination especially as it had to do with our fundamental rights. Now, all states, and again we are talking of the power of the state, have to act towards its citizens in order to fulfill its mandate, have to act sometimes in an unequal fashion. For example, all states have to tax their citizens and therefore some citizens are taxed more than others so we have accepted the fact that even though we have certain rights that ought not to be infringed that sometimes for the state to act, sometimes the State may treat different citizens differently. So that there has developed, again in the Western countries, that we have talked about, rules as to how the state can then infringe and impinge on certain fundamental rights and that is the second points I want to make very clearly. That all these rights, they are not absolute but there are certain guidelines as to when the state is to make certain classifications seeming to favour one group versus another, that there are controls, that there are reasons given. In America, which I am familiar somewhat, having qualified in law there, the supreme court for instance in looking at classifications would look first and foremost that if a classification as to do with certain specified groups those classifications are called suspect. For that classification to hold. For you to classify some people in such a manner and that classification being called suspect it is held to a very high standard called stripped scrutiny. There has to be compelling reasons for the state to be using such criteria or for such criteria to be used. So what we’re seeing therefore is that to give a group a fundamental right is not an inconsequential thing. It is not an inconsequential thing. It is very, very important. And therefore we have to look very carefully as to why we are granting this right. Why are we granting it a right?

This is where we come now to one of the terms I am supposed to discuss, minorities because we are talking about minorities rights so with the subject at hand we are talking of individuals with a sexual orientation that is non-heterosexual to be considered a minority, a defined minority. For example, most constitutions have accepted race to be a valid criterion, gender to be a valid criterion, age to be a valid criterion. So here we are saying let us consider sexual orientation to be a valid criterion for distinguishing among our citizens so that they can have a fundamental right to be considered within that distinction. And this is where we have the problem because not many individuals are convinced about this. Because what has happened within this historical process that we have seen in the development of rights and the expansion of rights, and the expansion of the categories of valid classification. We have seen that in many instances, these rights can be turned from a shield, to a sword which can go on into areas that was not intended. And these are things we have to discuss very frontally because the bottom line out of all the expansion of group classifications and of rights, it all came out of debate which was heated and which was expected to be heated because we are talking of changing the way we literally see the world and ourselves. Many times we can look at the world and be convinced that things change but when we are part of the world that change is demanded of, it creates great confusion. So one of the points I would want to make at this juncture is that we must be willing to have an open mind as we discuss these things – for both sides, this ought to be for both sides. As I was saying, that if you define something as a fundamental right, for instance it can possibly lead to a demand for remedies. It can lead to a demand for remedies such as Affirmative Action; you can have a demand for quotas, you can have demands as is happening here – as a demand to be defined as a minority and all that implies. So we have to be willing to go into such a construction much more thoroughly.

Now, what I would like to do at this point is to talk about what can we do in Guyana or what do we see as necessary to be done. First and foremost, if the issue is one of discrimination, if the issue is one of discrimination, and this is one of the primary way, if not the only way in which there has been expansion of the doctrine of fundamental rights and expansion of categories whose fundamental rights can be infringed, there has to be shown a historical pattern of discrimination. Because we simply can’t import something from another country or import something that is seen to be the going thing unless it applies here because many of us are willing to say this in terms of political structures but it also has to do with social structures if political structures can be irrelevant and not applicable to our reality why should it not also be for social structures? So we have to accept therefore that if we want to import a particular right into Guyana we have to at least have an empirical study, empirical data should be presented. Has such a right been violated? Has there has been consistent, sustained discrimination against homosexuals in Guyana. And with all that I have tried to study, to look-up, to discover, especially in this past week since Vidya invited me to this forum I have not been able to find that.

So I have to rely, unfortunately, on one’s own history of being a Guyanese and living here, that it is not within my knowledge and of course this is anecdotal and totally my own impression I want to make that very clear, that in Guyana that there has been such a sustained pattern of discrimination against gays. I think those who propose that there ought to be a change in the constitution for such a change there ought to be some such study done to show that there is in fact a need for a remedy. What I suspect is happening here, however, is not so much that there are grounds for a remedy against discrimination so much as a call for acceptance, for acceptance of homosexuality or non-heterosexual behaviour in terms of sex, an acceptance of it as a valid lifestyle which can they say that people are constituted as a group and if this is so then that ought to be put on the agenda frontally because we are looking at a whole different set of criteria that needs to be satisfied. So as one writer put it, there is a world of difference between saying “I am proud of my gay son” and any saying “I am proud that my son is gay”. And I believe in Guyana, to me, that is the distinction that needs to be made. That very few Guyanese that I have found, because of recent and you know normally this raises a laugh and that says its own thing about how gays are seen, but of recent there has been a great discussion about individuals who may be homosexual in government. In such discussions I have not heard the orientation of the individual be used as a disqualification, as a disqualification for that individual holding office.

But the snickers and the laughter, I think, has more to do with it being accepted as a valid lifestyle. And this I believe goes to values, as to what one sees as proper or not proper. So believe therefore that what is needed in Guyana, what is needed in Guyana, is for there to be a greater discussion, a greater debate as to what homosexuality is all about. I am sure other panel members will talk about all the different theories of what causes it. But to me one fact that struck me when I went through the literature was that it appears that more males than females were homosexuals. Implying therefore that it was not a random event, implying therefore that it maybe it has to do with the socialization of the male, as to how masculinity is defined. And I was saying earlier to an individual who I meet today for the first time, that going back to my own history within this country where homosexuality was not quote unquote a problem especially within the Indian community that I grew up in. Because the role of the male was much more diffusely drawn. There was not the Western insistence on this very macho, narrow definition of the role. So within the community that I know 40, 30 years ago one could have a whole gamut of expression and still be male. Be very soft, be quote unquote almost feminine and still be male; feminine in what we now stereotype of what an individual can or can’t be.

So one of the things I would like us to consider therefore is that before we jump on to remedies such as enshrining the right to sexual orientation in our constitution, and in a sense accepting the whole Western paradigm on sexual roles, and the whole sexual division of labour and all those things. That we also simultaneously look at other cultures, other cultures that did not have or may have handled this question of sexual orientation a bit differently. That would be my recommendation. So again as I said it appears that the issue in Guyana is not one of discrimination against homosexuals, because I believe that still has to be proved nor one of tolerance, nor one of tolerance. I don’t believe it is such. Because as I said again anecdotally I don’t see this great hostility that I have seen in other societies against gays. But I think it has to do to with giving official imprimatur or social approval to this question of sexual orientation. And I don’t believe the legislature can give such an imprimatur. It will not lead to social coherence. And this is what we’re looking for. That if there’s a need for there to be a change in values, and like I said this is an evolving process I would think that it behooves those who think it ought to be in the constitution that there ought to be a programme of convincing society that it is necessary but in the mean time I come down on the side of those who feel that it ought not to be enshrined in our constitution as a fundamental right at this juncture.

I thank you very much”.

Moderator: Thank you very much Ravi. I am sure a

number of us were wondering and looking forward to

hearing what the honourable Ravi Dev will have to say

to us this afternoon and I think we have not been

disappointed in it being stimulating. Certainly it is

a very interesting position that has been put forward

that in fact, and I think he’s challenging the

audience, that he has not experienced or found in our

society that there is any overt discrimination against

homosexuals or lesbians in our society and therefore

there is not the need for our rights to be protected.

This is very, very interesting and I think if that be

so, we have a lot to teach the Western democracies in

this respect. However, we do have other speakers who I

am sure will also stimulate us and I hope, this issue,

we won’t forget it by the time we come to the dialogue

so that when can perhaps discuss this in greater

detail. But I think the basic position of Ravi is that

caution on putting a right in, if in fact it is not

being violated at all in our society. Quite an

interesting position.