Gay-rights activist has no case, says attorney
Barbara Gayle, Justice Coordinator
Attorney-at-law Georgia Gibson-Henlin has submitted in the Constitutional Court that gay-rights activist and attorney-at-law Maurice Tomlinson cannot claim any right under the Charter of Rights to use a private property to disseminate his message.
She was making submissions on behalf of Television Jamaica (TVJ) in the suit Tomlinson has brought against the media entity.
Tomlinson has also sued CVM TV and the Public Broadcasting Corporation of Jamaica.
He filed the suit seeking constitutional redress after the defendants refused to air an advertisement promoting tolerance of homosexuals. Tomlinson is also seeking an order from the court for them to air the video 'Love and Respect' as part of a campaign to change attitudes towards homosexuals and men having sex with men.
Gibson-Henlin argued yesterday that the court should throw out Tomlinson's claim because he had suffered no harm and the claim was not properly placed before it. She described the claimant as no more than a tool for his employer which is an American group known as Marginalised Groups for the international non-governmental organisation AIDS-Free World.
Abuse of the process
She argued that it was an abuse of the process when someone sought redress on behalf of another.
She also submitted that Tomlinson was bringing the claim on behalf of a group and its tolerance campaign was part of a regional campaign to change homophobic laws. She said Tomlinson created the situation which gave rise to the claim. She said there was the need for a filter to ensure that the court was not bombarded by frivolous claims under the charter.
Submitting further, Gibson-Henlin said TVJ had a right of editorial control and review as part of its regulatory obligations, freedom of the press, editorial control and property rights, whether it was dealing with advertisements or public service announcements.
She said further that the charter did not give Tomlinson a right to sue directly in the absence of any governmental action. She said Tomlinson had no basis for challenging TVJ's right to be careful about what it publishes. She stressed that the claimant had no right to use TVJ's private property to disseminate his message and therefore has no basis on which to seek a declaration from the court.
Queen's Counsel Hugh Small, who is representing CVM, will continue his submissions when the hearing resumes today before Justice Paulette Williams, Justice Bryan Sykes and Justice Leighton Pusey.