Supreme Court to hear Bain case tomorrow

BY PAUL HENRY Co-ordinator Crime/Court Desk henryp@jamaicaobserver.com

Saturday, January 10, 2015

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PROFESSOR Brendan Bain's case regarding the decision of the University of the West Indies (UWI) to terminate his services as director of the regional co-ordinating unit of the Caribbean HIV/AIDS Regional Training Network (CHART) is set for trial in the Supreme Court tomorrow.

The matter is set for five days before justices Lennox Campbell, Paulette Williams, and Frank Williams in Courtroom Number 9.

Bain, who is a medical doctor, was issued with a termination letter, dated May 20, 2014, by Vice-Chancellor Eon Nigel Harris, after gay and human rights groups pressured the UWI, on the heels of Bain's expert evidence in a case in Belize where a gay man
had challenged the constitutionality of the law that makes it a criminal act for men to have sex with men.

The doctor, who is a pioneer in clinical infectious disease practice in the Caribbean, and a leading medical authority on the HIV epidemic in the region, had testified that there is a higher degree of HIV and cancer among men who have sex with men.

The UWI, in dismissing Bain, said he had lost the confidence of the community CHART serves. But Bain filed suit over the matter and last year June obtained an injunction barring his termination, which was due to take effect on June 15. The injunction will remain in place pending the outcome of the lawsuit claiming breach of his constitutional rights and seeking damages.

"I have been trampled upon. My lifework has been brought into serious disrepute," Bain wrote in his witness statement filed with the court. "I built up a solid and sterling reputation over the years. The manner of my termination and the characterisation of my expression have damaged and destroyed this reputation."

But Professor Harris said in his witness statement filed with the Supreme Court that the UWI had at all times "prior to, during and subsequent to this dispute, treated Professor Bain with the utmost respect and denies allegations in Bain's particulars of claim that the UWI conducted itself in a manner to humiliate him, or to cause injury to his reputation and/or damage him.

"Professor Bain refused to acknowledge to the university or to the individuals and communities it is intended to benefit from the work of CHART that his decision to publicly oppose the change of laws in Belize undermined his effectiveness to lead CHART on behalf of the university in the provision of services to communities vulnerable to HIV/AIDS.

"I took the decision to terminate the contract as I was of the opinion that he destroyed the trust and confidence that was necessary for him to continue to represent the university and that he no longer commanded the support of a significant sector of the community to which CHART and PANCAP [Pan Caribbean Partnership against HIV & AIDS] were accountable," Harris's witness statement said.

Professor Rose-Marie Belle Antonie, dean of the Faculty of Law at the UWI's St Augustine campus and rights activist, who is to appear in the matter as an expert witness, said in her expert report that Bain's evidence of the high risk of HIV associated with men having sex with men was nothing new and cannot be labelled as expert evidence. She alleged that Bain's testimony in the Belize court was "both misleading and contradictory to the UWI HIV policy and programme".

Belle Antonie said that the consensus at meetings and fora where Bain represented CHART was that laws and policies that criminalised the act of men having sex with men should be abolished if real progress were to be made in the Caribbean HIV public health agenda.

She said that Bain's testimony also left out important information about scientific and medical data, which would have been significant for the thrust of the argument that homosexuality is inimical to public health.

"This is the uncontested evidence that when [persons living with HIV] are treated in the early stages of the disease with appropriate HIV medication, the chance of transmission of the disease is negligible, almost non-existent," she added.

However, Bain said in his witness statement that at the time he gave his evidence in the case of Caleb Orozco and Another v The Attorney General of Belize, he "enjoyed the freedom to study, teach, publish and debate independent of current opinion and subject to commonly accepted scholarly standards of freedom from institutional censorship".

He said this position has been further supported by a statement posted on the UWI website in which the university admitted that he had a right to give the expert testimony in the manner he did. He added that he told the court that his opinions in the report are his and should not be attributed to any institution with which he's associated. He said there was nothing inappropriate about his evidence that was based "solely on scientific data".

He said the termination of his employment as a result of his participation in the case is not only a breach of his academic freedom of expression but also "my basic freedom of expression and thought as guaranteed by the Jamaican Charter".

Additionally, he said the UWI has not, to date, expressed or communicated to him that it has lost trust and confidence in him. He said the defendant in all correspondence with him "iterated its confidence in me as an employee and a leader of all tasks entrusted to me..."

He said he was "vilified in relation to a cause that I have served selflessly" for the greater part of his career. He said the statement by the university concerning his termination "portrayed me as a person who acted in conflict with my mandate".

He added: "The statement, when read in its entirety, including the statement of Chancellor Alleyne, portrayed me as making statements that conflict with basic human rights, which is also untrue."

Bain said he has suffered loss, damage and embarrassment as a result of the actions of the university and said his contract should be sustained as the director of CHART.

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