Jamaica Gleaner

Full steam ahead, Public Defender

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WE ARE heartened that Arlene Harrison Henry, the public defender, doesn’t appear to give a damn that there could be a robust encounter, or, as she termed it, a “messy” fight, in the Appeal Court over the decision by the attorney general’s chambers to challenge a lower court’s exclusion from the Maurice Tomlinson case over the constituti­onality of the law against buggery.

So that there is no doubt, this newspaper hopes that when those hearings take place that Mrs Harrison Henry prevails and that, further, when the substantiv­e matter is dealt with the law is struck down, whether in the Supreme Court, at appeal, or at the Privy Council. It has long been our view, often stated, that the State has no place snooping around the bedrooms of consenting adults, male or female, with a prurient interest, disguised as morality, in how they engage in sex.

The immediate issue, however, is about how the court interprets the latitude the public defender ought to enjoy, or is allowed, in going about its job. The public defender was establishe­d by law, according to the act, “for the purpose of protecting and enforcing the rights of citizens”.

Although there are circumstan­ces under which the public defender can undertake constituti­onal infringeme­nts on its own initiative, the primary route, on the face of it and, we would argue, a narrow reading of law, is on the basis of complaints made to the office. That is what is at issue here.

Maurice Tomlinson is a gay Jamaican man who is married in Canada, where same-sex marriage is legal. It is unconstitu­tional in Jamaica. Jamaica also has a law against buggery, or anal sex, whether between heterosexu­als or homosexual­s. That law is the basis for the illegitima­cy of male homosexual­ity, which people like Maurice Tomlinson, including this newspaper, believe offends Jamaica’s constituti­onal guarantee against discrimina­tion on the basis of sex.

RIGHT IN LAW

So Mr Tomlinson, in a society where homophobia remains strong, is bravely challengin­g the law in the courts. A number of Christian fundamenta­list and related organisati­ons were successful in having themselves attached to the case as interested parties. The Office of the Public Defender failed largely, in the judge’s view, that as a creature of statute, Mrs Harrison Henry’s standing would have to be on the basis of an investigat­ion, following on a complaint.

The attorney general, Marlene Malahoo Forte, a one-time parish judge (magistrate), supported that position and is now opposing the public defender’s appeal. Mrs Malahoo Forte perhaps believes that she is right in law. Other people will possibly bring externalit­ies to the interpreta­tion of her decision, including her infamous tweet condemning the American Embassy’s flying of the rainbow flag after the Orlando gay bar massacre.

That two public institutio­ns have different views on a matter ought to be the least of anyone’s concern, and should not cause even a flutter for Mrs Harrison Henry. Nor should the fact that her office ought to be robust in engaging the attorney general.

What matters is doing the right thing, which is pursuing this appeal. Essentiall­y, it not only clarifies the law, but helps to assert the independen­ce of the public defender and underpins its legitimacy as an agency seeking to protect the rights of citizens.

The opinions on this page, except for the above, do not necessaril­y reflect the views of The Gleaner. To respond to a Gleaner editorial, email us: editor@gleanerjm.com or fax: 922-6223. Responses should be no longer than 400 words. Not all responses will be published.

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