Pressure mounts on UWI as Bar Association criticises firing of Professor

Group plans 'massive protest' for tomorrow

Sunday, May 25, 2014

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OPPOSITION to the sacking of Professor Brendan Bain continued to mount Friday as the influential Jamaican Bar Association (Jambar) took the University of the West Indies (UWI) to task while expressing concern that the controversial decision could have an adverse impact on experts giving testimony in Jamaica.

At the same time, a group that started an online petition in support of Professor Bain said it has planned "a massive protest" for tomorrow at the UWI's main gate starting at 8:00 am.

The group, which said that more than 1,900 persons have already signed the online petition that has been sent to UWI Vice Chancellor Professor Nigel Harris' e-mail address, stated that the protest was being staged because of Harris' silence in the face of mounting opposition to Professor Bain's dismissal as head of the Caribbean HIV/AIDS Regional Training (CHART) Network.

"Stand up for what is right. We will not be silenced. Join thousands of other people from across Jamaica outside the vice chancellor's office (across from UWI Mona Campus main gate). This is not about your ideological background but about the principle of standing up for justice," the group said in an e-mail sent to petitioners and the media.

The UWI has been the target of heavy flak since last Tuesday when it announced that it had cashiered Bain because he has lost the confidence of the community that the CHART was established to serve.

CHART, which is funded by the United States President's Emergency Plan for AIDS Relief (PEPFAR), is designed to equip health care workers and counsellors with the skills to treat persons living with HIV. The programme also has an education component aimed at ending stigma and discrimination associated with HIV/AIDS.

The UWI made its decision after being pressured by a coalition of 33 gay and human rights lobby groups from across the Caribbean to fire Bain because of expert testimony he gave in a constitutional challenge brought by a gay Belizean man against that country's criminal code.

The Belizean, Caleb Orozco, had argued in September 2010 that the code, which states that "every person who has carnal intercourse against the order of nature with any person or animal shall be liable to imprisonment for 10 years", violates his right to the recognition of human dignity, to personal privacy and the privacy of the home guaranteed by the Belize constitution.

In August 2012, Professor Bain, regarded as a pioneer in clinical infectious disease practice in the Caribbean and a leading medical authority on the HIV epidemic in the region, offered expert testimony in the case.

He pointed out in his testimony that the risk of contracting HIV is significantly higher among men who have sex with other men (MSM), adding that this was true for Belize, as well as other countries, including those that have repealed the law that criminalises anal sex.

"The risk to MSM and their intimate sexual partners is not just to their physical health. The adverse physical and physiological consequences of STIs (including HIV) in MSM create significant and avoidable financial costs to individuals, households and governments. These important considerations must be included when considering whether to give public approval to risky behaviours such as are often practised by MSM," Bain said in his testimony.

But those views, which Bain made clear were his and not the UWI's, angered the lobby groups who claimed that they represent a conflict of interest.

The UWI, in its statement announcing Bain's dismissal, said that "Many authorities familiar with the brief presented believe that Professor Bain's testimony supported arguments for retention of the law, thereby contributing to the continued criminalisation and stigmatisation of MSM. This opinion is shared by the lesbian, gay and other groups who are served by CHART".

The university also said that while it recognises Bain's right to provide expert testimony in the manner he did, "it has become increasingly evident that he has lost the confidence and support of a significant sector of the community which the CHART programme is expected to reach".

The UWI had also stated that Bain provided the testimony "on behalf of a group of churches seeking to retain the 1861 law".

But that claim was challenged by the Bar Association, as well as the online petitioners on Friday.

They pointed out that Professor Bain, in his testimony, had specifically stated that the opinions expressed were his and that he had been "given no instruction by any party, by any person representing a party, or by any other person with respect to this report".

Based on that, Jambar President Donovan Walker asked: "How then, in the face of this certification, has UWI concluded that the Bain report was '...given on behalf of a group of churches...'?"

The Bar Association also sided with the Medical Association of Jamaica (MAJ) on the issue of the veracity of scientific conclusion, saying that it "should only be challenged on the basis of science and not on emotion or sentiment its conclusions may evoke".

The MAJ and Jambar concurred that statements of fact are never meant to be offensive. They insisted that as an expert witness, Bain's "testimony to the Court is a duty to the Court, and is the opinion of the expert himself. He is therefore obliged to discharge his testimony truthfully and professionally".

Walker pointed out that the legal profession routinely relies on expert testimony to advance clients' cases. "As such, we are very concerned that the actions of UWI against Bain could adversely impact on the freedom of expression by experts giving testimony in Jamaica," the lawyers' association said.

"In civil proceedings in the Supreme Court that are governed by the Civil Procedure Rules, an expert witness has a duty 'to help the Court impartially on the matters relevant to his or her area of expertise' and 'that duty overrides any obligations to the person by whom he or she is instructed or paid'," Jambar added.

"In giving expert evidence, the information presented to the Court 'must be and should be seen to be the independent product of the expert witness uninfluenced as to form or content by the demands of the litigation. An expert witness must give independent assistance to the Court by way of objective unbiased opinion in relation to matters within the expert witness' expertise'," Jambar said.

"In that context, Bain's dismissal may cause such experts (many of whom reside in tenure at UWI) to become fearful to express their honest and considered belief as they may face adverse repercussions, even when their thoughts are based on decades of study and research and independent of the office that they hold," Jambar argued.

The association said that the UWI's retaliation against Bain "may well be contemptuous of our system of justice", as it could be considered as a wrongful interference in a judicial process.

They said the UWI's action raises serious questions in the minds of all persons who look to the university for independent thought and creative thinking. They also expressed concern that the work and worth of Professor Bain and other leaders in other academic fields could be so easily circumscribed.

Jambar also said that if Professor Bain was not given a fair and impartial hearing by the UWI before his contract was terminated, the university had a duty to accord him due process.

The online petitioners, in their statement, said they were asking Vice Chancellor Harris "to apologise for unjustly dismissing Professor Bain and to address 14 points... including clarifying whether students and academic staff are free to conduct research and publish their findings without the threat of being dismissed due to conflict with a political ideology or certain interest groups".

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