Fri | Dec 2, 2016

A courageous lawsuit

Published:Wednesday | September 3, 2014 | 12:00 AM
Anthony Gifford

Anthony Gifford, GUEST COLUMNIST

Javed Jaghai has withdrawn his constitutional motion challenging Jamaica's buggery law. I believe that he showed immense courage in bringing the case, and I am sad that he has had to withdraw because of fears for the safety of himself and his family.

I am reminded of a case in another jurisdiction where the influence of the churches was strong. In 1983, I represented Jeff Dudgeon in a challenge to Northern Ireland's buggery law before the European Court of Human Rights. In the rest of the UK, the law had been repealed in 1967, but in Northern Ireland the Protestants and the Catholics, so often at war with each other, were united in their opposition to gays. Jeff Dudgeon was a gay man who claimed that the buggery law infringed the right to respect for his private and family life, which was protected by the European Convention on Human Rights.

The Court upheld his claim, saying that "the very existence of this legislation continuously and directly affects his private life: either he respects the law and refrains from engaging - even in private and with consenting male partners - in prohibited sexual acts to which he is disposed by reason of his homosexual tendencies, or he commits such acts and thereby becomes liable to criminal prosecution". As a result of the ruling, the law was changed in Northern Ireland.

classic human-rights case

It was a classic human-rights case, where the force of majority opinion had to give way to the primacy of human-rights law. Our human rights, after all, are for us to enjoy as individuals. Even if I express a view which 99 per cent of the people find detestable, my right to express it must be defended. It is central to our democratic society that while the majority have the right to choose their government, they do not have the right to deny to an individual the fundamental rights which in Jamaica are enshrined in the Charter of Fundamental Rights and Freedoms.

Javed Jaghai, in the claim which he filed in February 2013, sought the protection of the section of the Charter which guarantees "the right of everyone to respect for and protection of private and family life, and privacy of the home". But he had two factors to deal with which Jeff Dudgeon did not.

First, there was a savings clause in the Charter which said that nothing contained in any law relating to sexual offences, obscene publications and abortion, which was in force at the time the Charter was passed into law, should be held to be inconsistent with or in contravention of the provisions of the Charter. It is a contradiction: the Constitution, including the Charter, is the supreme law, yet some laws are said to be beyond challenge. It would have been a formidable legal hurdle for Javed Jaghai to jump.

Second, Javed Jaghai lives in Jamaica, where a gay man lives often in fear. In his statement to the court he recited a number of violent crimes against gays, and the threats against himself, and said: "Though the cause and the case are noble, I am no longer willing to gamble with my life or the lives of my parents or siblings." It should not be that bringing a legal action can invite illegal threats, but this was Javed Jaghai's reality.

Although the case will not be heard, Javed Jaghai has done our country a great service by bringing it. It has led to a debate in which many voices have spoken. Many Jamaicans have taken the position which The Gleaner advocated in November 2011, "to end this notion of the State as a legal voyeur monitoring the behaviour of consenting adults in their private spaces".

The issue should now be argued in Parliament, as the prime minister promised long ago. There is already a Joint Select Committee appointed to review legislation on sexual offences. Laws to protect women from sexual violence and children from sexual abuse should be strengthened, while the freedom of adults to have sex how they want to can be upheld. Let us concentrate on the real "abominable" crimes.

Lord Anthony Gifford QC is an attorney-at-law.