Justice Minister exploits homophobia to gain CCJ support

Justice should be blind

Justice Minister suggests CCJ may preserve the buggery law, Privy Council would not if left as our final court.

This entry can easily double as one of my Line in the sand for the PNP series I am running on this blog. See previous parts for that:  1, 2, 3, 4, 5, 6 & 7 & 8 & 9 & 10

Mark Golding

today's Gleaner headline has the PNP worrying in my view

So the Justice Minister in a desperate bid in my eyes to gain ground and support in the aftermath of the Caribbean Court of Justice, CCJ stalled debate in the Senate and the bathroom break shenanigans, a headstrong idiotic senate presidents, misogynistic senators complete with suspensions and video footage has said that a referendum maybe the way out to solve the CCJ matter if the three bills now in flux on the floor remain there, we have a parliamentary opposition that has still refused to return to the chambers of the upper house in protest of the treatment of Senator Marlene Malahoo Forte and that of her suspension in that same debate has said no to the CCJ as or final court. They are demanding an apology while the dead babies’ scandal rumbles on with leaks of the guarded so called audit of the hospitals. 

old Clovis toon

Given the Jamaica Labour Party JLP’s re-commitment in the form of pandering to the religious right groups on opposing any Buggery Law amendments or repeal via a referendum on the matter as well the Justice Minister has suggested that he expects a constitutional challenge to the buggery law and that it may go all the way passed the constitutional court all the way to a final court.

Political parties tend to degenerate while in power and strengthen in opposition as the ruling one thrive on their feelings of importance in the Yes Minister! Euphoria, if not arrogance and narcissism. The Simpson Miller is hemorrhaging and is being hammered hence any straw it can grab then so be it. Take note of the PSOJ, JMA & the Chamber of Commerce who are big PNP supporters have been sounding rumblings of discontent.

I hope this is a temporary madness on the Justice Minister’s part. Fearmongering and exploiting homophobia to gain votes.

The subtext from the Justice Minister is clear as a bell to me, the buggery law won’t be changed by him or even via any court challenge at the appellate level and as for conscience votes, nowhere in sight and sound, in other words screw the suggested (promised for some) buggery review while the CCJ will block the perceived imposition of homosexuality from white former colonial masters. So the LGBT advocacy’s goal for decriminalizing buggery and such is now being offered as the lamb to the slaughter to win the election to play on the feelings of us ditching the UK Privy Council, the queen and reparations. The LGBT vote is not sufficient in numbers and open presence to give some jolt or power for the genuine push for change which just further complicates matters but then again nationally we are not a nation of voters as has recent polls proved once again voter apathy is high.

A. J. Nicholson as captioned in 2007 by the Gleaner's Lasmay

I am reminded of the similar dodging by previous Justice Ministers & Attorneys Generals when they were both the same person; when A. J. Nicholson held both posts he too obnoxious as he is dodged the matter of the sex bills review and made it clear no gay marriage (although no one asked for it) and no buggery law amendments or repeals; then came his successor Dorothy Lightbourne in the change of government; I remember the meetings I attended with then JFLAG Programs Manager Gareth Henry Ms Lightbourne after some prodding albeit with her defensive Permanent Secretary (a Seventh Day Adventist) suggested we go the route of the judiciary as the buggery law was effectively too politically radioactive and could spell doom for any political party in power or senator’s legacy which as we know politicians dread; such politician or senator could end up in the political abyss. The judiciary route suggests precedence could be set via the high court level as resident magistrates judgements do not. Politicians’ legacies are more important for preservation and no one wants to be blamed for letting go battyman on the nation. It could spell doom for a politician even at the level of cabinet I have learned over the years when certain matters are brought up. Privately these politicians know very well and indeed some agree that the law needs to be removed or amended. That may have implications for parties gaining power in subsequent elections. Years later we see the religious right using that big stick to press their opposition. Given the growing disenchantment in recent times with the PNP with scandal after scandal, a poor performing Prime Minister who hardly speaks to the media or nation, a vexed youth cohort, a callous and uncaring Health Minister I am not surprised at this latest move.

Speaking at a Caribbean Court of Justice, CCJ townhall forum in Vineyard Town at the local Methodist Church on November 1, 2015 he said if the matter was taken beyond the constitutional court it would make sense for a body such as the CCJ to make a final ruling.

“I have no doubt that the buggery law will be tested in the constitutional court of Jamaica .... I have no doubt that that test will be taken to the final court; we feel that it’s appropriate that when that goes to a final court it should be a final court of judges that comes from the societies from the Caribbean ........ which share a common identity; a common history; a common culture and a common set of values around these issues.”

Mr Golding continued that those who are resistant to the CCJ but want to keep a buggery law better be careful what they wish for, he says the UK based Privy Council has already showed its hand where the right of persons to live in same sex unions is concerned.

“The United Kingdom is part of the European Union has abolished the buggery law; has same sex partnerships protected by law since 2003 and legalized same sex marriages; that court is a court which reflects the value of the contemporary British society which has essentially embraced the rights of the LGTB community; now I am not saying what would be the outcome were this case to go to the Privy Council or what the outcome would be were it to go to the CCJ and I think it is appropriate that when those challenges go, those decisions and those types of issues should be by a final comes from the same place that we are.”

In other words the Privy Council will impose the UK’s will despite the local law would be used to adjudicate such matters while a Caribbean Court of Justice, CCJ will maintain such old laws although 482 years old while the same bodies such as the hypocritical anti gay Lawyers’ Christian Fellowship support the CCJ but also wants or supports reparations and ditching the queen as head of state. Obviously this is also a shot at the Jamaica Labour Party who wants a local final court as opposed to a CCJ and also wants the buggery law to go to a referendum or preserving the old legislation. This is the same Minister and administration that JFLAG stupidly wants to put their trust in and expectations as espoused in a Gleaner article a few days ago.

There is the view that to put such a “sensitive” matter to the public would expose the Judicial system to the vagaries ( and vulgarity ) of politics. Somehow this would “politicize” the matter—a somewhat dishonourable and ignoble exercise.

“We commit to a Constitution that is truly grounded in the will of the Jamaican people and pledge that, as soon as

possible after the General Election, we will seek consensus to pass the legislation required to achieve the main elements of constitutional reform that have so far been

agreed. 

 These include:

• A Jamaican Republic headed by a Jamaican

• Substitution of the Caribbean Court of Justice for the UK-based Privy Council and

• An updated Charter of Rights to reflect current thinking on human rights

Before taking effect, we will ensure that these constitutional changes are submitted to the Jamaican electorate for their approval.”

[Source: People’s National Party Manifesto 2007 Chapter 1; Constitutional Reform, p8] 

That commitment by the PNP represented a reversal of its position as highlighted by the Jamaica Observer in an article “Now PNP says it will put CCJ to referendum”, 

It was clear to those of us who were watching things albeit from the outside closely the utterances via first time MP Damion Crawford as far back as two months after the PNP took office with perceptions of promises in the air for review that it was not important at the time and other matters are more important; so we knew it was not on from way back then. I am not surprised as the minister’s posture especially since 2014 at the periodical review and on radio interviews is clear that he effectively won’t cross it which was so characterized in that now infamous Jamaica observer Clovis toon I have posted in this blog in my ‘The line in the sand’ series.

Remember the days when the Privy Council was seen as the hanging court and politicians also played with it so much so that the conscience vote then was run and the outcome went the other direction, so again I am not surprised at this move by Golding. He seems to forget this is a democracy and we must avoid the tyranny of the majority.

also see:  Opposition leader (JLP) reiterates his call for a referendum on Buggery .... 2014

SAVANNA-LA-MAR, Westmoreland on October 27th -- Opposition Leader Andrew Holness said a Jamaica Labour Party (JLP) Government will allow the Jamaican people to vote in a referendum to determine if there should be any amendment to the Buggery Act.

"You will also know that when it comes to time to determine whether or not we should make any changes to the Buggery Act, or to any other act that determines how Jamaicans see the family, you know that we are not going to take it up onto ourselves in Parliament to make that decision. We are going to come to you, the people of the country, to make that decision," Holness told a the JLP Area Council Four meeting held at the Mannings School.

Holness, meanwhile, lashed Prime Minister Portia Simpson Miller who he quoted as saying that her immediate focus is to address the poverty of the Jamaican people, when she was asked for a schedule on amendments to the Buggery Act.

"... So they asked the prime minister, 'Prime minister, what is the timetable for the removal of the Buggery Law? And she says: 'Well, we have to go and we have to consult with the people you know, we have to go and consult with the people, but right now it is not a priority because we have to deal with the poverty of the people.' And I reflected on what she said," Holness said, adding that he had to ponder how the Government's push for the Caribbean Court of Justice (CCJ) was going to end poverty in Jamaica."

Said Holness: "I have asked the prime minister before and I have told the Parliament before [that] when you can tell me how the CCJ is going to end poverty in this country, I will join you in that crusade.

"In the same way that that matter is not a priority, I don't see how the CCJ is going to make one person in Jamaica richer than they were before. It might, maybe for a few lawyers, but I don't know," said the JLP leader.

"This is an independent country and when that time come you know that a Labour Party Government is going to put that question (of the CCJ) for you to decide where we go with it," said Holness.

Earlier in May Holness blasted the PNP for being hypocritical by suggesting a referendum on the CCJ & Buggery. Holness described as hypocritical the People's National Party's (PNP's) objection to a proposed referendum on Jamaica accepting the Caribbean Court of Justice (CCJ) as the country's final court on criminal matters and accused the ruling party of holding "a convenient view of democracy".

At the same time, Holness recommended that the CCJ and the question of whether Jamaica should repeal the Buggery Act be part of a grand referendum because of the weight of their importance and effect on people's lives, as well as the fact that parliamentarians are divided on the issues. Here JFLAG limpwristedness is most evident as no one is requesting a repeal as I understand it but decriminalization but have they said it loud enough so a lot of the arguments and hardened positions can be avoided?

also see: LGBT Community Eyes More Than Conscience Vote (Gleaner) from GLBTQ Jamaica.

"When important national issues come to the fore, it is always good and healthy to have a frank and vigorous debate that encompasses opinions from all quarters. But in the end, only the people can decide what is best for the people. To argue otherwise can never be anything but arrogant intellectual elitism," Holness said in a statement released to the Jamaica Observer.

He said that when the issue of Jamaican self-determination was first raised some 70 years ago, there were those who argued that only the literate and those who owned property should be afforded the right to vote.

"When the question of the form of our Independence was raised some 50 years ago, there were those who felt that the Government of the day should have just decided to continue with the federal arrangement without reference to the people," Holness added.

"It is ironic that the preachers of 'power for the people' and 'people power' are the same ones then and now preaching, 'don't let the people vote'," Holness said.

"Hypocrisy is a euphemism for the PNP's convenient view of democracy."

'Power for the people' was the campaign slogan used by the PNP in the 1972 general election which the party won under the leadership of Michael Manley (now deceased).

Thirty-nine years later, the party -- under the leadership of current Prime Minister Portia Simpson Miller -- revived the slogan with a slight modification to 'People power' for the 2011 election, which resulted in the Holness-led Jamaica Labour Party being voted out of office after only four years.

Several former British colonies have replaced the Judicial Committee of the United Kingdom Privy Council with the CCJ as their final court for criminal and civil matters.

However, Jamaica and a few other Caribbean countries, while accepting the CCJ's authority in interpreting the Revised Treaty of Chaguaramas on trade issues, have not yet signed on to the court in its criminal jurisdiction.

In February 2005, the Privy Council, in a case mounted by the Opposition JLP and civil society groups, ruled as unconstitutional the route taken by the Jamaican Government to establish the CCJ as its final court.

While the Government could end appeals to the Privy Council by a simple parliamentary majority, the UK law lords held that the Government required special procedures to entrench the CCJ as a court superior to the Jamaica Court of Appeal.

The implication is that establishment of the CCJ as Jamaica's final court will require either a two-thirds majority in both houses of Parliament and/or the winning vote in a referendum.

But the idea of a referendum has been consistently rejected by the PNP, while being supported by the JLP.

Holness also argued that if issues affect the very core of the constitutional structure of government, or seek to abridge or expand rights, or if they affect the sovereignty or territorial integrity of the State, then those issues ought to be brought to the public. Obviously as established in my previous posts the JLP is pandering to the religious right to gain votes and given the raised stridency by such anti gay groups whose advocacy is predicated on playing on Jamaica’s homophobia the party is seeking to capitalise on same given also the veiled threat by said groups.

He said the argument that having a plebiscite is unnecessary, unless there is a clear constitutional requirement for a referendum to decide an issue, defeats the role of elected representatives and could ultimately undermine Jamaica's representative form of government.

"There are some issues that qualify for referendum; however, they could very well be decided by the representatives in Parliament, once there is agreement on both sides," Holness said. "This was the case in the passage of the Charter of Rights. Recall that this started almost two decades before and went through a long deliberative process until consensus was reached."

He said it was clear that establishing the CCJ is one such issue that meets the criteria for a referendum and added that there are other current and far-reaching issues that could sensibly be placed on a referendum ballot alongside the CCJ.

"Repealing the Buggery Act, for example, could be part of a grand referendum. The argument for a referendum is even stronger since representatives in Parliament are divided on these issues. The solution is, let the people decide," Holness said. But my issue is the short time for a proper education process as decades of deep seated fear, ignorance and hatred cannot disappear overnight or by a vote, in fact it may enhance it with disastrous consequences in the end.

"We recommend to the Government a grand referendum to put the sovereign seal of the people on these issues," the JLP leader argued.

"Other countries have had similar referenda. A few years ago, St Vincent held a vote on whether or not to keep the Privy Council (fundamental change in the constitutional structure of government). A few months ago, Scotland voted on whether to stay part of the United Kingdom or become independent (sovereignty and territorial integrity)," Holness pointed out.

"Just last weekend Ireland voted on whether to legalise same-sex marriage or not (rights and freedoms). Are Jamaicans somehow lesser beings than Vincentians or the Scots or the Irish that we should not also have the same opportunity to decide our own fates?" he asked. Nice take via the high road but we know the outcomes of such a referendum.

He said that Jamaicans should take note of the position adopted by the Trinidad and Tobago Government on the CCJ.

"Trinidad, which hosts the headquarters of the CCJ, has now changed its position from partial acceptance of the final appellate jurisdiction, to now saying it will seek a referendum of the matter," Holness said. Since the elections in 2015 though the new party in power has expressed some review of that position departing from the Kamla administration’s stance.

"Though international pressure, which we have seen from various quarters over the past week, and partisan political imperatives such as the PNP's stance on the CCJ, can influence the actions of government, it is not always the case that such actions and influence accord with the will of the people. Governments should, at all times, seek to fulfil the will of the people," he said.

"We maintain that true political independence can only be attained through economic independence. Too much time and energy are being expended on these political matters which do not enhance our critical economic affairs," Holness said.

"It is time to put them to bed, one way or another, and focus on the truly critical issues of improving our dysfunctional health system, reforming our education structures and growing our moribund economy. Let us concentrate on moving Jamaica from poverty to prosperity," he said.

"Of the people, by the people, for the people. That was Abraham Lincoln's famous definition of democracy. And this remains as true today as it did 150 years ago," he added.

Pious hypocrisy or genuine reference to democracy?

Given our political culture I say the former; anything for votes and given the one term curse since the 2011 polls; the break of the long held tradition of multiple terms for parties the JLP and now the PNP with the Justice Minister’s latest utterances are jostling for votes. Voter apathy might have a different outcome than the expected and this one is hard to predict.

But oppositions when not in power tend to side on with ruling governments when it suits them let us not forget that the same Portia Simpson Miller led party sided with the then Jamaica Labour Party administration (Andrew Holness as deputy leader) headed by Bruce Golding during the Charter of Rights debate when the invented gay marriage debate was used to deny the inclusion of discrimination linked to sexual orientation in the document Portia then on her feet in the house said:

October 20th 2009 - "Mr Speaker when we accepted the final report from the joint select committee that were looking at the bill we were completely satisfied with their recommendation of a provision to restrict marriage and like relationships to one man and one woman within Jamaica and that the provision should be specifically spelt out so that there could be no ambiguity .......... yes one man one woman (laughter in the house) and if you are Jamaican and go overseas the same applies ..........."

also see: Opposition sides with Govt on No to same sex marriage (2009 post when the PNP was in opposition)

Let’s keep watch of the proceedings.

Peace & tolerance

H

also see:

Lawyers' Christian Fellowship's hypocritical stance on CCJ but keep Buggery Law!

PM scolds gay-rights protesters in New York ........ challenges truthfulness of Homophobic Claim

Justice Minister reiterates his personal position on the Buggery Law, Anal Intercourse, Consent & Privacy

Portia Simpson - 'Uncouth behaviour of others to make me look less than polished'

When did anyone ask for gay marriage rights in Jamaica when we can't get basic tolerance ....

Opposition Leader sides with antigay groups on Referendum on The Buggery Law 2014

Parliament May 2015

No Buggery Law Removal says Justice Minister, Gay Marriage parachuted in yet again May 2015

JFLAG Tries to Clarify its Agenda 2014

Vaz Says Constituents Stand Firm Against Homosexuality

also see: Holness Dithering On Homosexuality from 2011

The CCJ: The Role of the electorate from sister blog GLBTQ Jamaica

"Outdated" Bail Laws to be changed but Buggery Laws remain ... how convenient Mr.Golding? 2010