Public Defender appeals block from Buggery Constitutional Challenge

The Public Defender has filed an appeal challenging the decision of the Supreme Court to bar her from joining as an interested party in the law suit brought by gay rights activist and attorney-at-law, Maurice Tomlinson reported the Gleaner.

Tomlinson now has a matter in court challenging Jamaica’s buggery law.

He had filed a constitutional motion against the Attorney General seeking to have the anti-sodomy law nullified in all cases of adult consensual sex.

Tomlinson is also claiming that criminalising homosexuality amounts to a direct and blatant denial of equality before the law for him and other gay men.

In her application to join the case as an interested party, the Public Defender Arlene Harrison Henry argued that her office was created for the purpose of protecting and enforcing the rights of citizens.

However, Justice Kissock Laing turned down the application stating that the Public Defender was seeking to insert herself into the centre of a nationally divisive issue and could lose the confidence of many Jamaicans if allowed to join the case.

However, in her appeal, the Public Defender is contending that the judge erred in making his decision.

Among the grounds of appeal, the public defender is arguing that the judge failed to sufficiently apply the interest test to her office as was applied to the five other groups who sought to join the case.

Religious groups have joined the lawsuit as interested parties and are asking the court to reject Tomlinson’s constitutional motion.

The public defender is also contending that the judge’s decision has the effect of restricting the statutory remit of her office to protect and enforce the rights of citizens.

meanwhile on Sunday another attorney and former Acting Public Defender Matondo Mukulu had a thing or two to say via the Gleaner also:

If you ask reasonably informed citizens which public institution in their view is the guardian of the Jamaican Constitution, I would not be surprised if the Office of the Public Defender does figure among the list.

Unfortunately, the Jamaican Supreme Court, in a rather bizarre decision [Maurice Tomlinson v Attorney General [2016] JMSC Civ 119], took the view that the public defender, in effect, has no role/sufficient interest in a case in which a citizen asserts that Section 79 of the Offences Against the Person Act (OAPA) encroaches on his rights outlined at Section 13 of the Charter of Fundamental Rights and Freedoms (Constitutional Amendment) Act 2011.

On the other hand, the court, in its decision, took the view that the Jamaica Coalition for a Healthy Society (JCHS), the Lawyers' Christian Fellowship (LCF), and another group collectively referred to as the churches, were taken by the court to have sufficient interest in the case. In effect, these unelected religious bodies will be allowed to make representations in this case, as to why they say the buggery law should be allowed to stand, even if it does not affect their right to practise their Christian religion or to have a belief of their own choosing.

CIVIL PROCEDURE RULES

 

Quite briefly, the Civil Procedure Rules (CPR) is a body of rules that sets out the procedures that must be followed by the court when it is dealing with a civil matter. In Mr Tomlinson's case, as he was inviting the court to make a declaration that a piece of law passed by the Jamaican Parliament breached his constitutional rights, the court had to be guided by the provisions of Rule 56.

The JCHS, the public defender, LCF, etc. were not named or served by Mr Tomlinson with his claim, and thus had to make an application in which they said that they had sufficient interest in this case, pursuant to Rule 56.13, to permit them to participate. Accordingly, permission to persons or groups to intervene in cases of public importance is usually regarded as healthy, as such bodies bring expertise that can assist the court.

Rule 56.13 of the CPR does not define or offer any guidance to the court on the meaning of sufficient interest. As such, the court in Jamaica, over the years, has obtained guidance on the meaning of that term by reading CPR Rule 56.2, which sets out a guide on the meaning of sufficient interest in judicial review application, which is a separate type of application than the constitutional application that is being pursued by Mr Tomlinson.

Of the most notable factors are (a) any statutory body where the subject matter falls within its statutory remit; (b) any body of group that can show that the matter is of public interest and that the body ... possess expertise in the subject matter of the application.

Our courts, in judicial reviews, have consistently emphasised that sufficient interest should not be granted to persons who are deemed busybodies.

In reading the Supreme Court's lengthy but insufficiently reasoned decision, it deploys a series of 'reasons' as to why the religious collective should be granted standing. It would appear that it focused attention on the asserted 'expertise' that the collective would bring to the case. In establishing their claimed expertise, the JCHS contended that it had organised a series of conferences in which the issue of the retention of the buggery law was explored.

NO OPPOSITION

 

The attorney general, as primary defendant to the claim, did not oppose these anaemic arguments. However, if I had been in court, I would have been the busybody who would have made it clear that these bodies offer no expertise to the question of whether a person's right to either equal treatment or his right to privacy was infringed.

These groups follow a Judaeo-Christian theology, and are natural opponents of Mr Tomlinson's application. The participation in a few interviews or workshops does not give them any relevant expertise. It is for this reason why we should be disappointed that the attorney general was not bold enough to actually oppose their participation. In fact, this case tells us that there is a need on the part of the Supreme Court's Rules Committee to devise clear guidance in respect of the meaning of sufficient interest. A test that requires proof of 'wide public interest' will preclude the busybodies and it will ensure that a more robust test is applied by the court.

Turning to the court's reasons for denying the public defender's application, we must first appreciate that the court has a wide discretion to allow persons/groups to intervene. In dismissing the public defender's application, the court, relying on the fact that the public defender is a creature of statute and shamelessly supported by the attorney general, took the view that Section 13 of the Public Defender (Interim) Act provides that the only action available to the public defender is that of an investigation after receiving a complaint.

However, while the thrust of the court's interpretation of Section 13 is correct, I note a flaw that undermines the decision. In the first instance, it is wrong to say that the public defender cannot investigate a matter unless it gets a complaint, as during my time at the office, I dealt with files where the public defender initiated investigations where he had received no complaint from a specific member of the public. Such a proactive approach helps to promote the legislative intent in the creation of the Office of the Public Defender.

The flawed nature of the court's decision is to be found in the fact that Section 4 of the Public Defender (Interim) Act does provide that the Office of the Public Defender was created "for the purpose of protecting and enforcing the rights of citizens ... ." This section was ignored by the attorney general, and one wonders why it is that the court was never invited either to read into Section 4 of the act an implied provision permitting the public defender to intervene, or to consider that the public defender is permitted to bring or to join an application in which it is said that a right under the Constitution is being infringed.

The court, in effect, was of the view that by intervening in such a matter, the public defender will "run the risk of ... losing the trust of, or worse, completely alienating, the other side. The public confidence in the office may also be further negatively affected ... ." The fear of alienating (inevitable in such cases) a section of the Jamaican public, because she supports a challenge to a law that some citizens regard as unconstitutional, can never be a reason why the public defender should demur from pursuing a constitutional claim. The court abrogated its responsibility to those men and women in Jamaica who look to the public defender, guardian of the Constitution, to assist in vindicating their rights.

The attorney general's expressed support of a purely religious intervener, in a case that has nothing to do with a religious right, while excluding the parliamentary appointed guardian of the Constitution, is worrying. Where a prospective citizen applicant lacks the resources to advance a constitutional claim, does it mean that the sole guardian of our constitutional rights will now be reduced to a spectator, hoping for a complaint?

Email  matondo_mukulu@yahoo.co.uk.