The Jeff Cumberbatch Column – Of Signs and Wonders
I should start this week with a disclaimer. Despite its title and the epigraph, this essay has nothing at all to do with the identical hendiadys so frequently encountered in the Holy Bible and in the admonitions of the modern day end-timers. It treats rather, less loftily, a physical local sign by now notorious and the wonder of a recent judicial pronouncement emanating from the European Court of Human Rights.
That “RH” sign and public expression
For the quantum of public discourse that it has generated, that notorious sign featured on various social media, and more latterly in one section of the local printed press (not the Barbados Advocate), should have been wildly successful in raising public consciousness, if not for citizens to cease littering indiscriminately, at least for them to conjecture as to the meaning to be attributed to the letters “RH” in the sign. There is a well known Barbadian expletive that fits this abbreviation perfectly; indeed sometimes the two letters themselves are used for emphasis, and this might reasonably be presumed to have been the intention of the sign’s creators, especially since the other offered suggestions offered so far do not fit the bill, syntactically speaking.
Moreover, since the letters are used in an adjectival sense[to describe the littering], as would be the expletive at times, it might be objectively considered that the letters denoted that expletive.
This last point cannot be made too forcefully however, since the expression I am referring to, as most others of similar kind locally, may be used alternatively as a noun, an adverb, a preposition and maybe a conjunction all in the same sentence and to express varying notions. For instance one may be as bright as it, or one may be as “dumpsy” as it, as, equally, one may be either as poor as RH or as rich as RH. In fact, any two contrasting concepts will serve to make the point.
Nevertheless, in spite of its colloquial variety, it is an expression that would probably attract the attention of the local constabulary if used in a public space, and thereby render the user liable to a criminal charge of using indecent language. The constitutional guarantee of freedom of expression in section 20 of our supreme law simply does not extend that far. Indeed, it may be argued that this freedom is expressly qualified in this regard by section 20(2)(a) that immunizes from challenge any law that makes provision that is reasonably required in the interests of public morality, inter alia.
The offence of this nature is usually committed when the expletive is uttered orally. Should it make a difference that the words are not voiced here but rather suggested in a sign and not even expressly but, at worst, impliedly? There are some areas of the law, most notoriously in that pertaining to defamation, where the subjective intention of the publisher is treated as irrelevant and the meaning of the publication is guided by what the ordinary reader or listener would have understood it to mean. It is at least doubtful, however, whether such a holding should form the basis of a criminal charge where a criminal intention to use the expletive would normally be required.
Furthermore, I recall having read somewhere once of a proceeding in one of the local magistrate’s courts when an accused, wearing a T shirt with ostensibly Chinese or Japanese characters, was severely censured by the presiding judicial officer when it was finally recognized that the characters spelt out an expletive if read either upside down or from an appropriate angle. I cannot now recall whether the accused was cited for contempt although, given the nature of the expression revealed, he very well could have been. Was he any less a publisher of the offensive expression in that case than the anonymous creator[s] of the RH sign?
The wonder of the European Court of Human Rights [ECHR]
For those Barbadians, arguably not so few in number, who are opposed, bitterly, fundamentally, diametrically or otherwise, and for whatever reason, to the concept of same-sex marriage becoming a possibility in this jurisdiction, the recently reported June 2016 decision of the European Court of Human Rights that there is no human right under the European Convention on Human Rights to be party to a same-sex marriage might have come as a pleasant and welcome surprise, especially after the US Supreme Court decision in Obergfell v Hodges that imposed homosexual marriage as a right applicable in all the states of the union. In fact, the European decision is over one year old and is consistent with at least three previous holdings of that court that there is no human right to a homosexual marriage and thus the member states cannot be compelled to recognize it. This in spite of Article 12 of the Convention that reads;
“Men and women of marriageable age shall have the right to marry and to found a family. According to the national laws governing the exercise of this right.”
Despite the apparent breadth of the text however, the European Court has consistently ruled, utilizing the principle of subsidiarity; whereby the Court limits its ability to review a domestic authority’s decision and that of the doctrine of the margin of appreciation; through which member states are permitted to vary in their domestic law from their Convention obligations just so long as this variation does not cause the very essence of the Convention right to be impaired, that there is no obligation on a member state to legitimize homosexual marriage. In 2010, the ECHR held that the right in Article 12 was granted in the context of strictly traditional forms of marriage so that an Austrian couple could not allege discrimination because they were denied the possibility to marry or have their relationship recognized by Austrian law. In 2012, The Court held in a case involving a lesbian couple in a civil partnership who complained that the French courts would not allow them to adopt a child as a couple, that “in view of the social, personal and legal consequences of marriage, the applicant’s legal situation could not be said to be comparable to that of married couples.” And in 2014, the Court pronounced, in a matter from Finland, that the law did not require member states “to grant access to marriage to same-sex couples…”
I have already argued in this space that the local antagonists to same sex marriage have little to worry about. While we have not as yet enacted a provision equivalent to that in the Jamaica Charter of Fundamental Rights and Freedoms 2011 to the effect “no form of marriage or other relationship…other than the voluntary union of one man and one woman may be contracted or legally recognized in Jamaica”, This is precisely the common law position that now obtains locally and would have to be changed by appropriate legislative action, if at all.