Post 349.

The Darryl Smith fiasco seems like a model example of cover up after cover up. The fact that there’s still no commitment on behalf of state officials or political leadership to provide the truth of the matter, leaving more questions than answers, signals lack of commitment to ensuring that sexual harassment is a form of injustice that will not be tolerated or excused.

This is not surprising, if this was an issue taken seriously, political parties would all have their own sexual harassment policies, but the fact that these are as far away as legislation glaringly shows exactly how much impunity is an accepted reality.

We’ve heard about faults in the process of producing the report, but not that we can rely on the government and ministry to ensure that the public knows what really happened. It’s like the apparent faultiness of the report, which is based on the argument that Mr. Smith wasn’t given fair hearing, is more important than whether an employee of the ministry experienced sexual violence, which is what sexual harassment is, at the hands of a still-sitting Member of Parliament.

It’s like the lack of clarity about whether Michael Quamina was advising Mr. Smith or the ministry is as excusable as the $150 000 of public funds spent without accountability for the correctness of the process or its outcome. Who will ensure that the public knows the truth?

At this point, the hope seems to be that the whole thing will blow over and no answers will ever have to be provided. Sexual harassment legislation, if it ever comes, will not address this present injustice so the call should be for immediate answers as much as for longer term solutions. Those solutions include legislation, but require much more.

As the Equal Opportunity Commission, in its Guidelines on Sexual Harassment in the Workplace, has rightly stated, “It should be noted that criminalising sexual harassment does not address the problem of sexual harassment in the workplace as it does not speak clearly to employers, does not advise them of their duties, nor does it provide recourse to the victims.The criminal law does not achieve these goals”.

The public service now has a sexual harassment policy which requires the state to embark on widespread effort to create buy-in so that state agencies understand their responsibility, not only to victims, but also for creating workplace cultures that prevent such sexual violence in the first place. The key to preventing sexual harassment is for employers and managers to adopt a zero-tolerance position. This position is represented by having trained harassment response teams, inclusion of sexual harassment protections in collective labour agreements, informal and formal grievance procedures, and counselling support.

All these are necessary, but still not sufficient. While sexual harassment may be committed by an individual of any sex, largely it is a form of gender-based violence perpetrated by men, whether in workplaces or on the street. Primarily, it’s what Jackson Katz would refer to as male violence against women, often younger or more vulnerable or with fewer economic options. Ultimately tackling this issue requires change in men’s engagement with gender-based violence – whether as perpetrators or as allies in creating change.

The Prime Minister should have used this moment to explicitly state that sexual harassment is a form of labour exploitation that his government is committed to preventing, and can be held accountable for in terms of its leadership on this issue. The AG should have committed to legislation that doesn’t leave women mired in the limitations of a whistle-blower process.

I was surprised at accusations of women’s complicity in this injustice, and would like to instead take a break from demanding women’s responsibility for fixing everything and welcome men’s role in speaking out and taking action on these issues in a way that sees real, measurable change.

Post 279.

An attuned ear hears a shackle when it falls. It’s a surreal sound, when an instrument of inhumanity hits the ground broken, clanging with its iron weight of history. Instinctively listen for the heart-piercing exultations of emotion that echo out powerfully. Also be stopped still by a black hole of quiet horror that you may yet again hear that shackle clink close around a human body.

If the pores on your skin raised, as did mine when I heard Justice Devindra Rampersad’s judgment on Thursday, it’s because I never anticipated that a shackle’s fall could sound and feel like the force of a supernova when it collapses, its vibration sheer disintegrating your heart, leaving you in breathless tremors and shaking tears.

The boldness of the judgment and the interval of freedom it created for the first time in hundreds of years, like a slash in colonial space-time continuum, can’t be anything but celebrated.

There are thousands of bodies in the nation which had been existing in fear, shame and silence and which, for the first time, felt included, protected and free. It is like the future time-traveled and arrived to rock the vibrational field of the present, in a way so many citizens dared to dream, but despaired they wouldn’t live to see.

Justice Rampersad’s judgment in Jones v TT ruled that Sections 13 and 16 of the Sexual Offences Act, which criminalize buggery, or acts of anal sex, and same-sex genital touching, are unconstitutional. He held that the “savings clause”, which retains the legality of colonial law despite our republican status, doesn’t apply. This is because, in 1986, the Sexual Offences Act was repealed and “replaced”, thus creating new, post-1976 law.

Also new law was created with the unprecedented extension of penalties for buggery from 5 years to 25 years and creation of a new prohibition, titled “serious indecency”, and explicitly meant to criminalise lesbianism for the first time (by legislating that only men could have sexual access to women). In other words, this is new law, not simply a re-enactment and continuity from 1925.

Second, he argued that even if the savings clause could hold, its intention was to continue and preserve protections of citizens’ rights in the move from colonial subjection to independent nationhood, not deny rights, discriminate or victimize. In this case, relying on the savings clause as justification goes against its spirit.

Additionally, he agreed that Jason Jones’ right to privacy was denied, observing that such privacy had not been conceptualized in early colonial law, but was now an accepted ideal. Use of the savings clause to deny that right again defies its intention.

Regarding the Act itself, its violation of Sections 4 and 5 of the constitution were already acknowledged by parliament in 1986. It is possible to infringe upon individuals’ constitutional rights, under Section 13 of the constitution, but the burden is on the parliament to fully justify its necessity, which it has not done. Passage of legislation by 3/5 majority, however procedurally legitimate, isn’t enough.  Religious or majority view and public opinion isn’t enough. Political expediency is far short of enough in the face of signed international conventions and global and liberalizing standards of dignity, decency, equality and human rights. Claiming parliamentary prerogative isn’t enough, or might be enough in Britain where no constitution exists so parliamentary law is highest authority, but not in Trinidad and Tobago where the constitution should be supreme.

In other words, Jah bless our republican status and the possibilities for future-facing Caribbean jurisprudence. Why rely on British law when we have our own constitution? Why still carry habits of prisoners when we are freed from such imprisonment?

Without the savings clause as a defense, the 1986 Act was always unconstitutional and unjustified, and unreasonably and arbitrarily denied rights to privacy, family, intimacy and equality to all citizens and couples. Its legitimacy was founded on its own fiction and presumptions, like the emperor with no clothes.

To write that race, colour, gender, age or sexual orientation is not all that encompasses a person’s soul nor their value to society or themselves is to wield something other than the master’s tools to dismantle the master’s house. This is the ultimate dream of Caribbean emancipation.

For this to occur in real life and in our generation is overwhelmingly beautiful, and feels cosmically huge. On appeal, we hope the disturbing metallic edge of manacles, re-clasped on those who call for our love, is not something we have to hear. To them, do not turn a deaf ear.