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Why box ourselves in? - Judge questions fight against public defender joining gay rights case

Published:Wednesday | February 22, 2017 | 12:00 AMJovan Johnson

Court of Appeal President, Justice Dennis Morrison, has questioned whether a court should "box" itself into the "rigidity" of procedures and miss potentially useful contributions in a gay man's challenge to Jamaica's buggery law.

The top judge said that he was "grappling" with that "difficulty" yesterday as a lawyer for the attorney general insisted that the Office of the Public Defender does not have a legal basis on which to join the case.

Morrison and two others - Justices Marva McDonald Bishop and Frank Williams - are hearing submissions.

The Public Defender, Arlene Harrison Henry, wants the Court of Appeal to overturn a July 2016 Supreme Court decision blocking her from joining, as an "interested party", the case brought by Maurice Tomlinson, who is claiming that the buggery law breaches his constitutional rights.

Lord Anthony Gifford, who is representing the public defender, argued that unlike other human-rights related agencies created by Parliament, the law establishing the Office of the Public Defender says that the office is for the protection and enforcement of citizens' rights.




As a result, he said that the office is not limited to just investigations, noting that the 2000 law, which gave effect to that expanded role, was a departure from the office's predecessor, which was established by a now repealed act of 1978.

He said that although the issue is unpopular, the public defender's intervention would assist her "to protect the rights of a class of citizens whose rights will be impacted by the outcome of the case".

However, Solicitor General Nicole Foster-Pusey, who is representing the attorney general, insisted that Justice Kissock Laing was correct in refusing to allow the public defender in the case.

She said that the office has not said whether it has received a complaint that would fall within its remit, in addition to the fact that Tomlinson is not saying his rights have been breached by a state agency.

According to Foster-Pusey, who will end her submissions today, the public defender is pushing to join the case "on her own motion", as her actions are not supported by the law.




Justice McDonald Bishop noted that Tomlinson's challenge is against a law of Parliament and asked if the Office of the Public Defender was also interested in such a case, to which Gifford said yes.

In her submissions, Shawn Wilkinson, Tomlinson's attorney, told the court that the public defender is the main person entrusted with powers to protect the rights of "all" Jamaicans and then asked, "if not the public defender, then who" would be more interested in joining the case?

In his 2016 ruling, Justice Laing argued that "the public defender's submissions to the court would be of little assistance if they were neutral. If they are not going to be neutral, which position would the public defender take?

"The obvious danger is that regardless of the side that the public defender chooses, she runs the risk of losing the trust of, or worse, completely alienating, the other side," he said, noting that the gay issue was "nationally divisive".

Laing allowed several church and non-governmental organisations to join the case.

The actual case brought by Tomlinson is yet to be heard.