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Clash coming over gay-rights case

Published:Wednesday | August 10, 2016 | 8:00 AMJovan Johnson

A potentially messy affair is developing between Attorney General Marlene Malahoo Forte and Public Defender Arlene Harrison Henry, the latter of whom has declared her office will not back down from attempting to be allowed to participate in a court case challenging Jamaica's buggery laws.

News emerged yesterday that Malahoo Forte has filed an application in the Court of Appeal challenging Harrison Henry's own application in the top court to challenge a decision of a lower-court judge to bar her office from appearing in the case.

According to the public defender, the actions of one state agency - the Attorney General's Department - against another could make for a messy affair.

"These are normal things in court - part of the regular court procedures of attacking your opponent, and so on. It's nothing, really. I don't know if it is messy, it is what it has turned out to be. [It] could be (messy). I know that we are pursuing our appeal," Harrison-Henry told The Gleaner yesterday.

But she insisted to The Gleaner where she prefers to get a binding opinion from on whether her office could join the case.

"If it is that the public defender does not have jurisdiction (to appear in the case), I prefer to hear that from our Court of Appeal, that's my position."

Lawyers from the Attorney General's Department argue that the rules of the Court of Appeal require an applicant to first seek permission in writing from the court before filing an appeal.

Malahoo Forte, who has criticised the United States Embassy in Kingston for raising a flag associated with the LGBT community, says the public defender did not use the correct procedure, and as a result there is no proper appeal before the appeal court.

She is also contending that the notice of appeal filed by the public defender on July 13 this year is not valid and should be struck out.

These recent court challenges have been spawned by the decision of Supreme Court Justice Kissock Laing, who ruled in June that the Office of the Public Defender has no standing in the case brought by gay-rights activist and attorney Maurice Tomlinson.

 

DENIAL OF EQUALITY

 

Tomlinson is claiming that laws criminalising anal sex amount to a direct and blatant denial of equality before the law for him and other gay men.

In her application to join the case as an interested party, Harrison Henry argued that her office was created for the purpose of protecting and enforcing the rights of citizens.

However, Laing turned down the application, stating that the public defender was seeking to insert herself into the centre of a nationally divisive issue and could lose the confidence of many Jamaicans if allowed to join the case.

He has, however, allowed church and other anti-gay groups to join the case.

Former deputy public defender, Matondo Mukulu, noting that the public defender's office is the guardian of citizens' rights, has criticised the judge's decision, saying it is "flawed".

jovan.johnson@gleanerjm.com