The Gleaner in reporting the constitutional challenge matter and the attempt of the Public Defender to join the case carried the piece below.
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.
OFFICE NOT LIMITED
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which gave effect to that expanded role, was a departure from the office's predecessor, which was established by a now repealed act of 1978.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.
AGAINST A LAW OF PARLIAMENT
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.