Unbiased assessment of the buggery law required

Maurice Tomlinson, Contributor

Below is an open letter to Ms Shirley Richards.

I write with regard to your column published in the Wednesday, December 19 edition of The Gleaner under the caption 'Jamaica's buggery law no violation of human rights, international obligations'.

It is incredibly disingenuous to cite an article written by Professor Vasicannie while he was serving as Jamaica's deputy solicitor general, in support of your arguments.

In his capacity, as government employee, he was bound to support a law which he personally may have found objectionable.

What is needed is an unbiased assessment of the law, as could happen say in a court. But, as will be made clear below, you and your ilk have effectively blocked this very simple and elegant solution.

Be that as it may, the arguments you posited amount to a tortured interpretation of international human-rights law as it relates to Jamaica's buggery law. It doesn't take a "massive leap" of logic to conclude that our law would be violating a binding treaty we signed when a similar law was found to violate the exact same treaty.

SAME RESULT

Clearly, if the Human Rights Committee (HRC) was allowed to consider Jamaica's anti-buggery law as they were able to consider Australia's law, the result would be the same. So to argue that the Toonen decision is not "binding" is just an indulgence in legalistic sleight of hand.

And as you well know, the Jamaican Government has effectively taken away the option of the HRC reviewing our law. If states are permitted willy-nilly to ignore the recommendations of international human-rights bodies, what then is the point of being signatories to treaties that fall under the purview of these bodies?

Thankfully, however, the Inter-American Commission will be called upon to hear this matter as two petitions have been filed before that body seeking a determination of the law's validity in relation to the American Convention on Human Rights. This convention is yet another binding human-rights treaty that Jamaica has signed.

You also know that we could have settled this matter internally if the LCF (Lawyers Christian Fellowship) had not convinced our parliamentarians that the law should be saved from any review by our own local courts.

JUDICIAL REVIEW

The LCF website has even gone further by encouraging the Government NOT to amend the anti-buggery law in any way (even to correct the gross aberration where anal rape carries a 10-year sentence while vaginal rape carries life imprisonment) as you know that would open the law up for judicial review.

This would allow any court to find that criminalising the private sexual acts of consenting adults violates basic human-rights principles found in a free and democratic society.

If you are so confident about the validity of the anti-buggery law, why have you led the charge against re-enacting it in the Sexual Offences Act as well as preserving it from constitutional challenge under the Charter of Rights?

Ms Richards, I challenge you to a public debate on the validity of Jamaica's anti-buggery law, at a mutually convenient time. The matter is certainly serious enough to warrant such public ventilation of the issues.

Maurice Tomlinson is a former human-rights lecturer at the University of Technology, Jamaica.