Speaking in the Senate last Friday during the clause-by-clause examination of that Bill, Dr Harding said his comment was prompted by a newspaper editorial titled "End discrimination towards gays now" which argued, among other things, that "legislators should expunge the buggery law, the main bit of existing legislation that makes homosexuality illegal" and questioned why the new Charter had provided for "no freedom from discrimination because of a person's sexual orientation".
Said Harding: "As someone who deals in philosophy of law, it is something that needs to be considered and I don't think we can just throw it out the window. The reason I say this (is that) we talk about parliamentary rights and freedoms but let us not make jokes about whether people have inclinations or so, the question is, it is an arising problem.
"I happen to have a lawyer who is on my staff and he wrote a letter to the newspaper and his life has been threatened. Now I don't think there is anything amusing about that, or anything to laugh about. We have two issues that we can't perhaps face now but the country needs to face; one is the question of our Creole language and whether it's recognised or not and there is the suggestion that speakers of Creole are disadvantaged. The second one is the question of the rights of people who have different sexual orientation," he continued, despite obvious signs of disagreement with the line of argument from some senators.
However, he said: "The question of marriage is quite a different matter, defined in our law as the union of one man and one woman to the exclusion of all others for life. I mention these things of course because they are not going to go away, they are going to come back long after we have shuttled off this mortal coil, those problems are still going to be here. These matters cannot be pushed under the mat, they are going to come again. We don't have to accept the views but at least we could give some consideration of them."
Nicholson had said the Senate had not kept its promise to Devonish and his group to allow them to present the work which they were asked to do and urged that the senate apologise to Devonish and explain that it was too late for the proposed amendment at this point but encourage him to continue his work to help Jamaicans understand the Charter. Devonish had presented a paper containing his proposal to a Joint Select Committee of Parliament which had been deliberating the amendment to the Constitution.
That same matter prompted a last-minute call from Public Defender Earl Witter for the passage of the Charter to be delayed for that inclusion to be made.
On Friday, the Public Defender in a letter to the Senate, which was copied to several people, including Prime Minister Bruce Golding, Opposition Leader Portia Simpson Miller and House Speaker Delroy Chuck, had urged that the Senate before enacting the Charter give an audience to Professor Devonish and the work of the language unit.
Said Witter: "in any event even as I appreciate the Government's determination to press ahead without further delay, with enactment of what is undoubtedly the most fundamental piece of legislation since Independence (if not in all our history), I think it would be wise to have the benefit of Professor Devonish's and the unit's work prior to the Senate giving final approval to the measure today".
"It is therefore my urgent, respectful and humble recommendation that the Honourable Senate reserves the matter for further consideration before proceeding to enactment. This may even obviate the need for amendment before the ink is dry," Witter said.
The University's Language Unit, Witter said, has now found "on empirical grounds that approximately 30 per cent of the Jamaican population could not use or has difficulty comprehending standard English (in which the Charter is written) while nearly 70 per cent have positive attitudes to the Jamaican Creole being embraced as a formal language".
Harding remains unconvinced by the argument that the law should be used to enforce moral codes, and argued that the private activities of consenting homosexuals and prostitutes should not be criminalised.
Harding, who was attorney-general and justice minister and later foreign minister in the Jamaica Labour Party (JLP) administration of the 1980s, is basing his argument on the findings of the Wolfden Committee in Britain in 1954. He noted that the report recommended by a majority of 12 to one that homosexual practices between consenting adults in private should no longer be a crime. And it unanimously recommended, he said, that in the case of prostitution, though it should not itself be made illegal, there should be legislation “to take it off the streets” on the grounds that public soliciting was an offensive nuisance to ordinary citizens.
Harding was delivering the inaugural lecture of the Institute of Law and Economics at the PCJ Auditorium in Kingston last week.
He further posited that the Wolfden Committee’s report reflected those of noted philosopher John Stuart Mill in his Essay on Liberty to the effect that the function of the law “is to preserve public order and decency, to protect the citizen from what is offensive or injurious, and to provide sufficient safeguards against exploitation or corruption of others, particularly those who are vulnerable because they are young, weak in body or mind or inexperienced”.
His comments have a particular relevance in today’s Jamaica, and internationally, against the background of current topical debate about the banning of Jamaican entertainers for anti-gay lyrics. The issue of same sex marriages has also featured prominently in the run-up to the American presidential elections.
Homosexual acts are deemed illegal in Jamaica under existing buggery laws, while prostitution is officially outlawed, though often winked on.
During his address, Harding also echoed the Wolfden Committee’s basis for the recommendation for relaxing laws against homosexual practices on the grounds that: “There must remain a realm of private morality and immorality which is, in brief and crude terms, not the law’s business”.