Javin Kevin Vinc Johnson and Sean Macleish v The Attorney General of Saint Vincent and The Grenadines
| Jurisdiction | St Vincent and the Grenadines |
| Judge | ‘Henry, J.’ |
| Judgment Date | 20 November 2019 |
| Neutral Citation | VC 2019 HC 53 |
| Court | High Court (Saint Vincent) |
| Docket Number | SVGHCV2019/0110 |
| Date | 20 November 2019 |
THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
Henry, J.
SVGHCV2019/0110
SVGHCV2019/0111
In the Matter of an Application for Constitutional Redress Under S. 16 of the Constitution
Consolidated With
In the Matter of an Application for Constitutional Redress Under S. 16 of the Constitution
Ms. Shirlan Barnwell of counsel for the claimant Javin Johnson;
Mr. Jomo Thomas of counsel for the claimant Sean Mac Leish.
Ms. Karen Duncan with her Mr. Kezron Walters and Mrs. Cerepha Harper-Joseph of counsel for the defendant.
Ms. Meisha Cruickshank for the applicants/proposed interested parties.
Civil practice and procedure - Parties — Joinder — Appointment of representative — Whether churches ought to be granted leave to join proceedings as interested parties.
On July 26 th 2019, Mr. Javin Johnson and Mr. Sean Mac Leish filed separate Fixed Date Claim Forms against the Honourable Attorney General in which among other things, they challenged the constitutionality of laws which penalize buggery and acts of gross indecency. They claimed that the impugned laws violate the Constitution of St. Vincent and the Grenadines (Constitution) which guarantee certain protections such as privacy of the home, the right to personal liberty, freedom of conscience, freedom of expression, and protection from discrimination. At the first hearing 1, the claims were consolidated and case management directions were issued. The matter was adjourned for pre-trial review.
In the intervening period, ten churches and ministries 2 (namely The Incorporated Trustees of the Seventh-Day Adventist Church in Saint Vincent, The Incorporated Trustees of the Evangelical Church of the West Indies, The New Testament Church of God, The Archbishop & Primate (Spiritual Baptist) of Saint Vincent & the Grenadines, The Church of God (Saint Vincent) and the Grenadines, The Incorporated Trustees of the New Life Ministries, The Light of Truth Church of God, Kingstown Baptist Church of Saint Vincent and the Grenadines, Living Water Ministries International (Saint Vincent and the Grenadines) and Hope Evangelism Outreach Ministries) (‘the churches’) filed a joint application in which they sought an order to be added as interested parties
They submitted that they are entitled to be permitted to adduce evidence and make legal submissions. They asked that an order be made appointing The Incorporated Trustees of the Seventh-Day Adventist Church in Saint Vincent to represent them.
Mr. Johnson and Mr. Mac Leish opposed the application. They argued that the churches do not have a substantial or sufficient interest in the claim; and no legitimate interest in matters of health. The churches' application to be added as interested parties is granted for the reasons outlined in this decision.
The issue is whether the churches should be granted leave to join the proceedings as interested parties?
The court is empowered to add a party to proceedings 3. It may do so of its own volition or further to an application by a party or other interested person who wishes to be made a party. An application for such joinder is usually heard at a case management conference. When exercising discretion under the CPR, the court is obligated to seek to give effect to the overriding objective which to deal justly as between the parties 4.
The CPR also makes provision for addition of parties in cases involving applications for administrative orders of the type under consideration in this case. In this regard, CPR 56.13 (1) & (2) provide that the court may permit any person or body of persons who appears to have a sufficient interest in the subject matter of the claim, to make submissions by way of a written brief or otherwise. Such person or body may be permitted to do so whether he, she or it has been
Mr. Johnson and Mr. Mac Leish objected to the present application on three grounds. They submitted that:
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1. The churches have no standing to become a party pursuant to CPR 19.3.
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2. The matters raised by the churches disclose an insufficient interest in the subject matter to assist the Court pursuant to CPR 56.13.
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3. The churches are seeking to raise matters of health, matters concerning which, they have no legitimate interest pursuant to CPR 56.13.
They argued that even if the churches are permitted to participate in the proceedings, such participation should be limited to concise written submissions on the law only. I propose to examine the objections seriatim. However, it is important to provide some context to the contention by summarizing some key aspects of the factual allegations on which Mr. Johnson, Mr. Mac Leish and the churches rely.
In a nutshell, Mr. Johnson and Mr. Mac Leish claimed that the impugned laws impose severe penalties for their infringement They are avowed homosexuals and complained that the provisions amount to an invasion of their human dignity, demean them and strengthen and perpetuate the view among the wider society that homosexuals are less worthy of protection than heterosexuals in the State. The pleaded and asserted that the existence of the provisions have led to them being subjected to severe abuse from State and non-State actors which amount to breaches of the State's obligation to abstain from acts of human and degrading treatment. They also claimed that they are not free form invasions of their freedom of expression and freedom of conscience because of the existence of the impugned laws and how they are applied and perceived.
The churches provided joint affidavit testimony of Terrence Haynes, Carlos Cepeda, Byron Davis, Phyllis C. Ralph-Browne, Maude Gittens, Wendell Roberts, Calvin Ledger, Cecil Richards, Paul Kirby and Rhesa Jack-Shallow. They are respectively representatives of the churches who have filed the application to be joined in the claim.
The affiants attested that they collectively represent their respective congregants who are citizens of St. Vincent and the Grenadines and are entitled to observe and protect the Constitution and fundamental freedoms. They asserted that they all have the same or similar interests. They averred that they and their fellow congregants believe that Judeo-Christian principles are the foundation of many of the laws of the State of St. Vincent and the Grenadines.
They professed their belief in and commitment to uphold Judeo-Christian principles, which teach inter alia that:
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(a) the Bible is the true word of God which instructs on human existence and conduct;
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(b) sexual intercourse should occur only between a man and a woman; and
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(c) marriage is a sacred union consecrated by God between one man and one woman. The affiants deposed that the orders being sought contravene the Judeo-Christian principles upon which the laws in the State were founded and which they uphold. They asserted that if the orders are granted it would affect how they live, what they practice and teach their members; and society as a whole.
They stated that they oppose the practice of buggery and acts of gross indecency between persons of the same sex generally, on biblical, medical, and social grounds. They said that this is a part of their teaching to members, adherents and congregants. They deposed further that they are aware of the public health concerns which are directly related to buggery, especially the high incidence of the spread of STDs and HIV/AIDS among persons who engage in anal penetration; and that they seek permission to bring such evidence to the court's attention.
The affiants deposed that it is their view that if the claim succeeds:
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(a) buggery and acts of gross indecency between members of the same sex would be facilitated and encouraged;
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(b) buggery and acts of gross indecency between persons of the same sex would be publicly promoted as normal, healthy sexual behaviours; and be taught to children in school; and
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(c) there would be a marked increase in new cases of STDs and HIV/AIDS among persons who engage in the act of buggery and acts of gross indecency between persons of the same sex.
They stated that the Constitution provides that the fundamental rights and freedoms of an individual are subject to the respect for the rights and freedoms of others and the public interest. They deposed too that a successful outcome for Mr. Johnson and Mr. Mac Leish would have a corresponding adverse effect on them and their fellow congregants. In this regard, they averred that such an outcome would translate practically to infringement of their own constitutionally protected rights and freedoms including their right to freedom of expression, freedom of thought, conscience and belief in relation to matters concerning buggery and acts of gross indecency between persons.
They expressed the concern that they will be faced with several adverse consequences in such eventuality, including that:
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(a) their right and the right of their members to:
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(i) seek, receive, distribute or disseminate information, opinions and ideas in opposition to buggery and acts of gross indecency between members of the same sex through any media;
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(ii) equality before the law;
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(iii) enjoy a healthy environment;
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(iv) freedom of religion, either alone or in community with others and both in public and in private;
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(v) manifest and propagate religion in worship, teaching, practice and...
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