Orville Taylor, Contributor
I am not a betting man, but I am willing to bet my bottom dollar that my friend Damion Crawford will be flabbergasted to know that Parliament that he has now joined has already done what he thinks it won't. Never mind the Jamaicans For Justice (JFJ) activists who are still so deafened by their own clarion that they don't recognise what is in front of them. Well, let me release the puss from the bag right now. Parliament has already agreed to decriminalise buggery.
At a recent event, Crawford, speaking with his usual youthful candour, suggested that despite the statistical likelihood that Parliament, based on a normal distribution, should have gay parliamentarians, it would not anytime soon move to legalise homosexual behaviour. Carefully toeing the line given that his locks are not simply fashion and Rastafari 'fire bun' on that 'livity' from Sodom and Gomorrah, he made it clear that there are many other things to preoccupy ourselves about than other persons' sexuality. Good answer.
Let's make it clear, however, that there is a difference between decriminalising and endorsing it. Decriminalisation would merely mean that consenting adults, Adam and Steve, can do whatever they please behind doors. It absolutely doesn't mean that they can parade on the beach naked or have the homosexual equivalent of sex outdoors. There is an 'L' of a difference between pubic and public.
Prime Minister Bruce Golding, in 2008, made the bold statement on BBC that he would not have known homosexuals in his Cabinet, with the now-famous "not in my Cabinet" comment. His Jamaica Labour Party (JLP) has not wavered. Since he stepped away from the party, stalwart Member of Parliament (MP) Daryl Vaz more than hinted that he was not in support of having practising gays in his party or government. Furthermore, flash-in-the-pan Prime Minister Andrew Holness did nothing to demonstrate a movement away from the Golding doctrine.
pinocchio test failed
However, we must be mindful that much of what the JLP's officers have spoken about has failed the Pinocchio test. Indeed, the same party hired a law firm which acts on behalf of governments and denied the existence and usage of an American aircraft, even though it was in plain sight, and then did an about-face within 24 hours, to the chagrin of former Security Minister Dwight Nelson.
In 2009, MP Ernest Smith blurted out in Parliament, "I am very concerned that homosexuals in Jamaica have become so brazen, they've formed themselves into organisations and are abusive, violent and ... [what the] Ministry of National Security must look into is why is it that so many homosexuals are licensed firearm holders?"
Yet, just weeks later, he was defending a client charged with buggery and managed to secure for him a non-custodial sentence. But then again, he already has a lengthy proboscis like the puppet boy. Thus, like his client, honesty and truth also escaped without being made to spend a night in in the 'Jail P'.
On the other hand, perhaps demonstrating why the seven-day rule is now being enforced, then leader of the Opposition, People's National Party (PNP) President Portia Simpson Miller, unequivocally said she would appoint persons on the basis of ability, even if they were gay. Furthermore, while declaring that she had no interest in the bedrooms of her ministers, she felt that the buggery laws should be reviewed. Nevertheless, she would leave it up to Parliament to make the vote.
The $222-million question is: who will bell the cat? Crawford doesn't think any one of the 63, including himself, would be so bold as to bring the motion to Parliament. And PNP officers and Portiapologists tried to make the case that she did not say she would change the law.
Nonsense! Having declared that she would appoint gays to her Cabinet, she already has implied that she believes that the behaviour should no longer be criminal, given that no person who is guilty of a felony can sit in Parliament. Therefore, the only way she could honestly appoint a known gay to her Cabinet is if she is committed to change the law.
But guess what? She doesn't have to.
Eleven months ago, Parliament unanimously agreed on the Charter of Rights which now replaces Chapter III of the Constitution. All 51 persons present in Parliament in April 2011, including the vociferous Vaz, who shouted "unity is strength", voted to insert the charter. Previously, under Section 24, there was freedom from discrimination on a number of grounds, such as: "respective descriptions by race, place of origin, political opinions, colour or creed ... ".
Sex not included
Notice! Sex is not one of the characteristics which protected a person against discriminatory treatment. And by sex is meant the physical characteristics that distinguish between males and females, not behaviour, and certainly not the choice of partner.
Feminists might have had issues with this exclusion, but there were a number of positive biases towards women. These included the burden of maintenance and primary custody of children, and in the workplace, a protective law, still on the books today, which prevents women from being subject to the hazards of working at night. Incredibly, the prime minister is working illegally under the Women (Employment of) Act of 1956, which outlaws women working more than 10 hours in any one day.
Now, the Charter of Rights, in Section 13 (3) (i), guarantees the right to freedom from discrimination on the grounds of "being male or female", and Section 13 (2) (b) states, "Parliament shall pass no law and no organ of the State shall take any action which abrogates, abridges or infringes those rights."
Committees comprising some of the most brilliant legal minds, K.D. Knight, Delroy Chuck, Ronnie Thwaites, Ossie Harding, A.J. Nicholson and Dorothy Lightbourne, as well as non-lawyers, began the work in 1999 which led to the final charter being passed.
Now the cover is blown. Buggery, which is 'anuphile' penile penetration, is addressed by Section 76 of the Offences against the Person Act, which is still on the books. It states, "Whosoever shall be convicted of the abominable crime of buggery, committed either with mankind or with any animal, shall be liable to be imprisoned ... ." Thus, only men can be 'buggers', although women, men and even animals can be 'buggees'. Furthermore, nothing criminalises female-to-female sexual contact.
So, since only male homosexuality is criminal, Section 76 is unconstitutional and, if taken to court, will be struck out. Maybe my non-legal mind might have misunderstood the lessons I learned from my law lecturer in Cave Hill, but did I notice something that the above-mentioned legal geniuses missed? No chance, I am not that brilliant. The gentlemen and ladies in Parliament and the Senate knew exactly what they were doing. A Parliament which housed other lawyers knew about the impact of constitutional changes and existing legislation. This is taught in the first year of the law programme.
So, dear readers, whatever might have been the religious orientation of the Parliament in 2011, they knew what they were doing but acted like Pontius Pilate. But, of course, the easy way is to allow someone from J-FLAG or JFJ to challenge the act as being contrary to the Constitution, which they might have already started
Thus, Damion may flash his locks in astonishment, but as Grammada used to say in her colourful Patois, "Di ass dun gaan choo di gate aready."
Dr Orville Taylor is senior lecturer in sociology at the UWI and a radio talk-show host. Email feedback to email@example.com and firstname.lastname@example.org.