Fri | Aug 18, 2017

Editorial | Full steam ahead, Public Defender

Published:Thursday | August 11, 2016 | 8:07 AM

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 put 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 her 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 Jamaica 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 against the legitimacy 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 view on a matter ought to be least of anyone's concern, and should not cause even a flutter for Mrs Harrison Henry. Neither 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.