They and legal observers to whom Stabroek News spoke say that the fundamental-rights provisions are intended to regulate the action of the state, so in no way can any action be brought under Article 149 if for example a priest were to refuse to marry two persons of the same sex.

They point out that a characteristic of the Guyana constitution is that there are provisos limiting fundamental rights. In the case of sexual orientation there is a proviso against discrimination, but it does not apply where there are laws which make provisions with respect to adoption, marriage, divorce, burials, devolution of property or death or other matters of personal law.

The commission, equally composed of representatives of the political parties and civil society including the religious communities, recommended the entrenchment of the ban on discrimination based on sexual orientation as a fundamental right.

The recommendation was the basis of the legislation unanimously approved by the National Assembly in 2001 to which the President refused to assent because of the representations by the religious community led by the evangelical churches. Even stronger representations by the churches and other religious bodies have led the government to make the provision the subject of separate legislation from the other new rights recommended for entrenchment. As a result it finds itself in the unique position of bringing a bill to the legislature it has no intention of supporting. Long-time observers of parliament cannot recall a government ever doing this before.

These observers say that the decision to defer the bill at the last sitting of the National Assembly effectively puts it in cold storage unless the major parties change their minds.

Vidyanand Persaud, who was one of the Guyana Bar Association representatives on the CRC, describes assertions that there was a lobby for its inclusion and that there was no discussion about it, as untrue. He says the recommendation was included with the consent of all the members of the commission.

Persaud recalls the issue being raised at one of the commission’s hearings at which one of the organisations was asked to provide a paper on the issue as its representatives had interpreted the phrase as referring to sexual harassment.

He argues that a point that is being overlooked is that the proposed amendment is to ensure that the government does not discriminate on the grounds of sexual orientation as the fundamental rights provisions are intended to regulate the action of the state.

Persaud also points out that the constitution also requires the courts to take account of the government’s obligations under the various international covenants and treaties to which the government is a party.

He noted that its treaty obligations encompassing civil and political rights enjoin the government not to discriminate on the grounds of sexual orientation.

Jean La Rose, who represented the Amerindian communities and was deputy chairman of the commission, also says there was no lobby for its inclusion and neither was the recommendation intended to undermine either the institution of marriage or the values of society. That she says is a whole other debate.

She recalls that the intention was to ban discrimination on the grounds of sexual orientation based on the perceived sexual orientation of persons who may apply for a job.

La Rose also believes that the debate has been skewed to be about homosexuals when the term equally applies to heterosexuals. She says she is firmly against discrimination on any grounds.

One of the officials of the commission, who asked that his comments be made anonymously, points out that rather than worrying about the sexual orientation provision, more attention should be paid to the fundamental rights provisions that have been approved by the National Assembly. He alluded to the effect of the fundamental right provision of Article 11 which now requires the government to consult with the trade unions in the decision-making processes of the state and what that would mean in relation to agreements the government wants to enter into with international financial institutions that would affect the well-being of its members.

GAP/WPA parliamentarian Sheila Holder is alarmed that the parliament would have had a bill before it for whose provisions the parties had received no mandate from their constituents.

She says the government only backed off from continuing with the bill because of the agitation of the religious community. Holder says the religious community’s determination to act was what caught the government’s attention, explaining that it always reacts to pressure that members of the society exert to ensure that its concerns receive attention.

The commission’s report indicates that the issue was discussed [see page 83 of the report] and the recommendation on the fundamental rights provisions, including that banning discrimination on the grounds of sexual orientation, were included by a majority vote. It said too that a specific recommendation enjoined the courts of Guyana “to pay due regard to international law and international Conventions and Charters to which Guyana has acceded when dealing with matters involving alleged violations of the Fundamental Rights enshrined in the Constitution.”

At the level of the parliamentary oversight committee that oversaw the implementation of the recommendations, Minister of Culture Gail Teixeira stated during the July 24 debate that she had chaired the sub-committee that dealt with the fundamental rights, and praised the manner in which the committee had conducted its work.