Tue | Sep 18, 2018

The war has just begun

Published:Sunday | September 21, 2014 | 12:00 AM
In this September 4 photo, a policeman evicts one of more than a dozen gay men who reside in a gully off Trafalgar Road, New Kingston. Some of the gay squatters, who have been accused of public nuisance, theft and other crimes, were forced to flee their communities because of their sexual orientation. - Jermaine Barnaby/Photographer

Gordon Robinson, Columnist

Unsurprisingly, persons, especially those whose lives are surrendered to religious dogma, comprehensively fail to grasp the meaning of 'privacy'.

Take Peter Espeut (please). Here's a man against whom nobody could attribute anything but kindness of heart, spirit and intent. He also benefited from the best education available anywhere, namely, a 1960s Campion College schooling. During that period, when Campion was the laughing stock of Jamaican secondary schools for refusing to prioritise sports over academics, Campion students were taught to think independently.

Jesuits, who made up the overwhelming majority of Campion's teacher population together with a smattering of the very best local pedagogues, insisted on being questioned, rewarded argument from students with reasoned reply, and encouraged independent thought.

So I know Peter had a great start in life educationally, which only proves how powerful church doctrine can be. Because, decades later, in the context of commentary on the Javed Jaghai claim that the 'buggery law' is unconstitutional, this was his expressed understanding of privacy:

"On May 2, 2014, I filed an affidavit ... rebutting Jaghai's 2013 claim. In paragraph 8, I refuted Jaghai's claim that Jamaica's so-called buggery laws violate his right to privacy. I argued the right to privacy doesn't confer the right to break the law in private; if so, then one could commit murder in private with impunity. The right to privacy protects the sanctity of a person's home, but it doesn't permit illegal acts to be done in the privacy of one's home. Jaghai misunderstands the meaning of the 'right to privacy' in the Jamaican Constitution, and this claim would have been thrown out."

I'll excuse Peter, as a legal layman, his belief that one can argue in an affidavit. No affidavit is allowed to include any argument nor can it 'refute' anybody's claim. Affidavits contain only facts known to affiants. Claims are refuted when judges, with counsel's assistance, apply the law to facts either agreed between/among the parties or found by judges.

Facile statements like "the right to privacy doesn't confer the right to break the law in private" are like teaching kindergarten students, by rote, that one plus one equals two. That's correct, BUT does any teacher explain "what's a two"? It's nothing more than an arbitrary method of adding up quantities only valid until a better system is invented. In the meantime, traditional counting (one-two-three ... ) is functional only up to nine (we've only nine 'numbers'), so man invented a way to start all over again by placing zero to nine beside the original numbers (in sets of 10) in order to be able to count any quantity. So that 10 (1+0) is really a repeat of 1; 11 (1+1) is really a repeat of 2, and so on.

Similarly, "the right to privacy doesn't confer the right to break the law in private" is convenient, but the real question is, 'What's the law?' Legal systems based on written constitutions limit lawmakers in what can be made 'law'. If they exceed constitutional limits, the law may 'pass' but, as soon as an independent judiciary gets hold of it, it'll no longer be 'law'. One of Jamaica's fundamental constitutional limits on lawmakers is: "Parliament shall pass no law and no organ of the State shall take any action which abrogates, abridges or infringes ... the right of everyone to ... :

(ii) respect for, and protection of, private and family life, and privacy of the home; and

(iii) protection of privacy of other property and of communication."

Jaghai's claim would NOT have been thrown out because "Jaghai misunderstands the meaning of the 'right to privacy' in the Jamaican Constitution ... ." That 'right to privacy' would expressly prevent today's Parliament from passing the 'buggery law' and any prosecution under that law would be unlawful. The many other offences created by the Offences against the Person Act don't infringe on anyone's privacy since they involve acts of violence against persons who don't consent.

Selective religious dogma

The only difference between the attempted criminalisation of anal penetration and any attempt to criminalise vaginal penetration is the nature of the sex act, but both are (usually) done in private. Any attempt to criminalise either would be a savage invasion of the privacy of those consenting adults engaging in private sex acts. Non-reproductive vaginal sex with a consenting adult isn't a crime, but rape of the same woman is. All anal penetration is criminal and the sole basis for the discrimination is selective religious dogma.

The 'buggery law' is without doubt an unjust law that, if passed today, would be struck down by our courts as unconstitutional. It's a silly, ignorant, useless invasion of privacy of a significant percentage of humanity. It's silly and useless because it can't prevent the perpetual daily practice of the act criminalised. It's ignorant because it turns a blind eye to the social consequences of forcing homosexuals to remain in the closet. This results in many marrying unsuspecting women with devastating results. I can't believe any woman would support this intolerant dogma, which is a double-edged sword so destructive of the health and spirit of so many women.

As Lord Gifford pointed out in his excellent, balanced review of the Jaghai case, the reason Jaghai was fighting an uphill battle had nothing to do with a misunderstanding of privacy but only because the powerful, blinkered religious lobby succeeded in bullying Parliament to include the following savings clause in the Charter of Rights:

"Nothing contained in or done under the authority of any law in force immediately before the commencement of the Charter ... , relating to

(a) sexual offences;

(b) obscene publications; or

(c) offences regarding the life of the unborn,

shall be held to be inconsistent with or in contravention of ... this chapter."

So, under pressure from the religiously righteous, Parliament decided to specifically exclude 'sexual' offences created by any previous law from the constitutional protection to privacy. Anal penetration is only an 'offence' because an archaic law, specifically saved from judicial scrutiny by a cowardly Parliament, says so. In every other context, including that of some heterosexual couples in their own bedroom, it's simply another way of expressing love.

Constitutions are creatures of the society in which they exist and subject to flux as society itself evolves. This 'savings clause' itself was introduced by constitutional amendment. It can be removed by exactly the same process when Jamaican society matures and catches up with the rest of the world. Based on the same bigoted biblical bollocks, women (not men) were once put to death for adultery. Jamaica has matured so that adultery isn't a crime. Pioneers like Javed Jaghai needn't feel their brave efforts have come to naught. In Jamaica, the war against homophobia has just begun.

After Oliver Cromwell's 17th-century invasion of Scotland during which 3,000 Scots were slaughtered and 10,000 imprisoned, the seat of Scottish government was eventually passed to London in 1707, thus dethroning the Stuarts. Bonnie Prince Charlie, rightful successor to the Scottish throne but for the English takeover, started the first Jacobite uprising in 1745, supported by Highland clans. It was obliterated by the redcoats in the 1746 Battle of Culloden. An interesting factoid: More Scots fought for the British in that battle than for Scotland.

The Stuarts never regained the Scottish throne. Prince Charlie, who fled the battlefield, lived the remainder of his life in exile in France where he tried in vain to gain support for his cause; conducted a string of affairs; and drank excessively. Bonnie Prince Charlie grew old, ugly and embittered. He died aged 67, fat and alcoholic.

But the struggle continued. Robert Burns' poems, written in Scottish dialect, were pivotal to Scots retaining their identity. Recently, celebrities like Sean Connery have lobbied relentlessly for Scottish independence. Eventually, the English conceded a referendum. Panic-stricken, last-minute whining and begging by traditionalists like Piers Morgan and David Cameron resulted, again, in more Scots voting with England than against. But, more than 1.4 million voted for separation, ensuring the end of Westminster's status quo and more autonomy for Scotland's Parliament.

Don't despair at lost battles. Time is on the side of just causes. Victory comes in increments.

Peace and love.

Gordon Robinson is an attorney-at-law. Email feedback to columns@gleanerjm.com.