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Keep her out! - SG urges Appeal Court not to allow public defender in gay-rights case

Published:Thursday | February 23, 2017 | 12:00 AMJovan Johnson
Arlene Harrison Henry

The Appeal Court has been told to keep the Public Defender out of a gay-rights court case even as one of Jamaica's most senior judges has asserted that the rights issue is one of the "great debates of our time".

Solicitor General (SG) Nicole Foster-Pusey urged the Court of Appeal yesterday not to overturn a 2016 Supreme Court ruling barring Public Defender Arlene Harrison Henry from appearing in the case against the buggery law brought by Maurice Tomlinson.

The two-day hearing of the appeal brought by Harrison Henry against the ruling ended yesterday. The Appeal Court is to hand down its judgment on May 26.

Foster-Pusey is representing the attorney general, who is opposed to the public defender joining as an "interested party" the case brought by Tomlinson.

She said that there is no provision in the Public Defender Interim Act, which gives the office the right to appear before a court. She added that if the public defender wants to appear in a court case, judges should leave it to Parliament to amend the legislation to give that right.


However, it appears that Appeal Court president Justice Dennis Morrison continues to "grapple", as he said on Wednesday, with whether the court that will hear Tomlinson's case will miss getting useful contributions from the public defender if she is kept out of the actual case that is yet to be heard.

"These are some of the great debates of our time," he said, adding that there is a "modern movement" to enhance states' response to the rights of citizens.

Foster-Pusey responded that while contributions from the public defender may be useful, Harrison Henry has no business in court unless the law is changed to allow that.

The public defender has argued that the law establishing her office makes it clear that she has a duty to protect and enforce the rights of all citizens.

Lord Anthony Gifford, who is representing her, has also rejected the argument from the solicitor general that the public defender's role is limited to investigations.

Among other things, Tomlinson is contending that the buggery law infringes on his constitutional right to equality before the law.

Several church and non-governmental organisations have been allowed to join the case.


Editor's Note: The headline on this article has been amended to reflect the correct acronym for the title of Solicitor General.