Sat | Apr 29, 2017

A foolhardy lawsuit

Published:Friday | September 5, 2014 | 9:00 AM

Speaking for myself, I deeply regret that Javed Saunja Jaghai last week withdrew his lawsuit against the attorney general of Jamaica for breach of his constitutional rights. It was a foolhardy lawsuit, entirely without merit, which he would have lost; and it would have further set back the gay agenda.

Since the matter is no longer sub judice, I am now free to comment. In his amended affidavit of July 5, 2013, Jaghai explained the grounds of his challenge that sections 76, 77 and 79 of the Offences Against the Person Act (Jamaica's so-called buggery laws) were in breach of the Charter of Fundamental Rights and Freedoms of the Jamaican Constitution. In paragraph 11, he states: My "constitutional rights to equality and privacy are violated by criminalising the free expression of my sexuality away from the public gaze".

On May 2, 2014, I filed an affidavit in the Supreme Court of Jamaica 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 that the right to privacy does not 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 does not 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.

Jaghai contends that the buggery laws violate his right to equality before the law. In paragraph 31 of his amended affidavit, he states: "Right to equality before the law (section 13(3)(g) of the Charter) - This right means that no individual or group of individuals is to be treated more harshly than another under the law, and an individual is denied equality before the law if it is made an offence punishable under the law for him to do something, which his fellow human is free to do without having committed any offence or having been made subject to any penalty". Jaghai hoped the court would rule that "vaginal penetration" and "anal penetration" are equal - are the same thing. Because heterosexual men are free to perform "vaginal penetration" "without having committed any offence or having been made subject to any penalty", similarly homosexual men should be free to perform "anal penetration" "without having committed any offence or having been made subject to any penalty". Then and only then, Jahgai argues, will homosexual men be able to exercise their constitutional right to equality before the law.

Equality misunderstood

But this is not what equality before the law means in the Jamaican constitution! Because homosexuals and heterosexuals are equal before the law, it means that the same law will be applied equally and fairly to both; both will receive a fair hearing and a fair trial. It does not mean that if I can do my preferred type of sex, you can do yours, whatever you feel to do. Jaghai misunderstands the meaning of the "right to equality before the law" in the Jamaican constitution, and this claim - and, therefore, his whole case - would have been thrown out.

If Jaghai had not withdrawn his case, he would have lost it. And he knew this. In Section 7 in his affidavit of withdrawal filed last week (August 28, 2014), he writes: "I am very concerned that this case could go well into 2015 or later given consistent delays. If this matter should be taken to the next level, which my lawyers have suggested is a likely outcome, then we can expect another few years of deliberations". So his lawyers told him he was likely to lose the case, and it would have to go to the next level - to the Court of Appeal. And he was likely to lose that, too. Maybe they had put their hope in the UK Privy Council!

Writing in The Gleaner last Wednesday ('A Courageous Lawsuit'), noted attorney-at-law Lord Anthony Gifford also suggests that Jaghai would have lost his case: "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".

He who fights and runs away will live to fight another day. But it will not be possible to repeal the buggery provisions through the courts; Parliament will have to do it. But Parliament cannot forget the 25,000 strong in Half-Way Tree!

Peter Espeut is a human rights advocate and a Roman Catholic deacon.