Jamaica's buggery law not among the most severe in the Caribbean region .............

A letter appeared in the Gleaner earlier today on a study conducted by JFLAG on the Buggery Law in the Caribbean making comparisons to other states as to severity. Here is the letter firstly, meanwhile the antigay spin doctors try to twist the narrative that of Jamaica being mislabeled as the most homophobic place on earth. 

The letter:

THE EDITOR, Sir:

Research around the application of Jamaica's buggery law reveals it is not among the most severe in the Caribbean region. The findings, which are contained in a study conducted by J-FLAG titled 'Criminalizing Private Consensual Intimacy II', help to challenge the decades-old belief that Jamaica is the most homophobic place on earth.

The study found that when compared to similar laws in other Commonwealth Caribbean countries, Jamaica is neither the best nor the worst as it relates to the criminalisation of private, consensual same-sex conduct. Six Caribbean countries criminalise both male-to-male and female-to-female consensual sexual activity. They are Antigua & Barbuda, Barbados, Dominica, St Lucia, St Vincent and the Grenadines, and Trinidad & Tobago. In Jamaica, only male-to-male consensual sexual activity is criminalised, in addition to the criminalisation of anal sex regardless of gender.

J-FLAG undertook the study to review statistics on the use of the buggery law in the justice system, explore the treatment of similar laws internationally, and compare the severity of the local buggery law to others in the Commonwealth Caribbean.

Sentences vary across the Caribbean. In Barbados, for example, the offence of buggery can attract a maximum sentence of life in prison, while in Trinidad and Tobago, a maximum sentence of 25 years. This is significantly more severe than the maximum 10 years in Jamaica.

NOT AS HARSH

The fact that Jamaica's punishment for buggery is not as harsh as some Caribbean neighbours does not mean the law must not be amended.

This is by no means an indication that the law does not affect LGBT people across the country. The buggery law continues to be a locally and internationally recognised symbol of state-sanctioned discrimination against LGBT Jamaicans. Reform of this unjust law remains urgent, since the provisions do not align with the fundamental rights to privacy and equality before the law as secured in the Charter of Fundamental Rights and Freedoms.

This is particularly true of Section 80 of the Offences Against the Person Act, which legalises wanton arrests of gay men and trans women. Fixing this and other laws, and creating a welcoming legal and policy environment for LGBT Jamaicans, are steps in the right direction.

DANE LEWIS

GLENROY MURRAY

J-FLAG

ENDS

 the article that got most persons in a bind

How the article was misrepresented is part and parcel of how the already existing homonegative feelings led to the deceptive narrative by ignorant religious fanatics (that make honest church fol look stupid) is why there is hardly any serious movement in changing hearts and minds. The social media firestorm is now sending a narrative that JFLAG et al were lying on Jamaica all along and further justification for no change to the buggery law, repeal or amendment.

JFLAG tried to clarify its agenda though somewhat late as the public and homophobic groups kept using the full repeal arguments instead of the change in position, the J took too long to adjust themselves in my view.

Also see: Is ‘The Most Homophobic Place on Earth’ Turning Around? (2015), Buggery law referendum baiting by JLP in #Javote2016 campaign and J-FLAG now advocating for decriminalisation of same-sex acts

The Star News still couldn't help themselves despite some slight forward thinking in recent years, they headlined the story, when it is the law that is being discussed and not the inherent multi-generational homophobia:

Jamaica not the most homophobic country

In the face of calls for Jamaica’s buggery laws to be repealed, one of the main organisations that supports homosexuality has discovered that Jamaica is not the most homophobic place on Earth.

Having conducted a study, titled, Criminalising Private Consensual Intimacy, J-FLAG found that in Barbados, the offence of buggery can attract a maximum sentence of life in prison. In Trinidad and Tobago, the maximum sentence for buggery is 25 years in prison, while in Jamaica the maximum penalty is 10 years imprisonment.

“This is by no means an indication that the law does not affect LGBT people across the country,” Dane Lewis, J-FLAG’s executive director said.

“The buggery law continues to be a locally and internationally recognised symbol of state-sanctioned discrimination against LGBT Jamaicans. Reform of this unjust law remains urgent since the provisions do not align with the fundamental rights to privacy and equality before the law as secured in the Charter of Fundamental Rights and Freedoms,” he said.

ENDS

Good to see the attempt by the goodly JFLAG to provide some figures and a more balanced comparison but the public's response despite way heightened visibility shows me we have a long road ahead.

Peace & tolerance

H 

Amnesty International 2014/5 Report mentions Jamaican LGBT Matters

The latest report from AMNESTY is now available for download. Amnesty International’s Annual Report provides a comprehensive overview of the state of human rights in 160 countries over the course of 2014.

The inability of world leaders to deal with the changing face of conflict, including a growing threat from armed group attacks, has left millions of people unprotected and in grave danger, Amnesty International warned as it launched its annual assessment of the world’s human rights.

download HERE

It mentions as usual the LGBT community's struggle and has mentioned the so called promised conscience vote that was missed in April 2014 that was to address the decriminalization of buggery on the duped promise by the Prime Minister. See: Human Rights of Most Marginalised Must Be Protected – Portia Simpson Miller at "Justice for All" conference 2014 for more background on the political trick played on us.


Also see: Buggery law conscience vote for parliament soon .............

RIGHTS OF LESBIAN, GAY, BISEXUAL, TRANSGENDER AND INTERSEX PEOPLE 

Consensual sex between men remained criminalized. LGBTI organizations continued to report attacks, harassment and threats against individuals based on their real or perceived sexual orientation, which were not fully and promptly investigated. 

On 14 June a mob attacked a young man at a shopping mall in the town of May Pen because he was allegedly seen putting on lipstick. 

There was no police investigation into the incident. In August, Javed Jaghai, a member of the Jamaica Forum of Lesbians, All-Sexuals and Gays, discontinued the constitutional challenge he had filed in February 2013 against laws criminalizing sex between men, following the receipt of threats against him and his family. A “conscience vote” by MPs on legislation criminalizing consensual same-sex relations, which the government announced would be held before April, did not take place.

According to the International Lesbian, Gay, Bisexual, Trans and Intersex Association, 78 countries have laws in effect that are used to criminalize consensual sexual relationships between adults of the same sex.

Other matters:

BACKGROUND 

Levels of homicide remained high, mainly in marginalized inner-city communities, although there was a decrease on 2013 figures. The Jamaica Constabulary Force reported that 699 people had been killed up to 14 September, 15% fewer than in the corresponding period for 2013. 

POLICE AND SECURITY FORCES

 Following rising numbers in police killings in recent years (210 in 2011, 219 in 2012 and 258 in 2013), 2014 saw a reduction in the number of police killings according to the Independent Commission of Investigations (INDECOM), an independent police oversight agency. 

By the end of October, 103 civilians had been killed by police, compared with 220 for the same period in 2013. A number of people were killed in circumstances suggesting that they may have been extrajudicially executed. 

Following the death of Mario Deane (latest news on there HERE) in suspicious circumstances in police custody in August, in September the Ministers of Justice and National Security announced a review of the detention system in order to “develop a strategic response to the issue of the treatment of persons in lock-ups and correctional facilities”. The Criminal Justice (Suppression of Criminal Organizations) Act, which is aimed at “disruption and suppression of criminal organizations” became law in April. 

Concerns were raised that this law could be used to
criminalize whole communities by association.
In February a Commission of Enquiry was finally established into the state of emergency of May 2010, when 76 civilians were killed during an operation by the security forces.

The three-person Commission began its work on 1 December. In April the Office of the Public Defender handed over all files pertaining to its investigations into the state of emergency to INDECOM. The files include
the cases of 44 people alleged to have been unlawfully killed by the security forces. Eleven police officers from Clarendon suspected of being part of a “death squad”
were arrested and charged in April by INDECOM. 

They were alleged to have been involved in the murder of nine civilians since 2009. Investigations were ongoing at the end of the year.

JUSTICE SYSTEM
Overburdened courts led to continued delays in the justice system. In February, the National Security Minister stated there was a backlog of approximately 40,000 cases. In June, the Chief Justice said that the unavailability of forensic evidence, outstanding statements and ballistic reports, as well as an absence of adequate court infrastructure, human and financial resources, were seriously hampering the
justice system.

also see: 
Mark Wignall on Buggery law review promise was a political sham 2013

Peace & tolerance

H

Is Freedom Of Expression At Risk? asks JFLAG advocate

It may seems so if we are to follow the more vocal and strident anti gay voices as previously latent or dormant feelings have been reawakened in light of the Bain matter. Sometimes I wonder when I see some articles and the folks behind them, does Mr Nelson not realise the public relations nightmare the organization he is linked to JFLAG is now facing and that the work done by previous advocates to get to some real semblance of tolerance has been wiped out by the poor monitoring and subsequent late action by some of his superiors?

Does he not understand the implications of the secular humanist ambit that was added to the public advocacy and yet they expect a tolerance message to resonate with an already cynical public? There seems to be hypocrisy on all sides with the JCHS head complaining of name calling by gay advocates yet he (Dr Wayne West) has no trouble eloquently reeling them off such as "The “utterly fascist, utterly Stalinist” , neocolonial ,imperialist, anti-free speech, thought- policing, intolerant ,belligerent , Mujahideen , ayatollahs of anal, Taliban Gaystapo." (taken from his blog) he also tries to claim that:

"TTT maintains that up to about five years ago the author would have not resisted removal of Jamaica’s buggery.

Testifyingtotruth has no intention of peeping into anyone bedrooms but is even more committed to make sure that no one removes Jamaican’s fundamental rights to freedom of speech, freedom of religion, freedom of conscience and parental rights and this is the clear objective of the LGBT lobby which one sees unfolding in western democracies.

Testifyingtotruth is therefore committed to resisting this fascist, stalinist, neocolonial, imperialist, anti-free speech, thought policing political movement.

We do not hold the view that all LGBT persons are a part of this political movement nor do we support violence or any physical harm to LGBT persons."

Recent radio interviews with the gentleman suggests otherwise to me, take a look at this Observer report.

see Wayne West @ 1:15

The business of ethics and integrity comes into play here ON ALL SIDES involved and I notice there is very little emphasis placed on these two tenets of public advocacy especially with regards to Jamaica advocacy both on an LGBTQI front and HIV Prevention work and now obviously missing in the holy religious groups and voices as well.

Tit for tat anyone? how can there be dialogue now even in the face of a religious voice (though a foreigner) calling for the LGBT community not to give up on the church: 

see: Integrity of Jamaican LGBT Advocate Questioned, named as student loan delinquent

The religious groups feel they are being stifled as well as music artists when the action taken though justified in many respects has not been properly timed especially in relation to the bigger strategic goals of the HIV prevention strategies, one may even question the moral authority some folks have when calling out Professor Bain for conflic of interest when said COI is evident in the very groups who did so, the incestuous nature at the management and direction levels of some organizations is questionable then we wonder why decisions and indeed ethics are missing. Attaching the Charter of Rights in this on the context of freedom of speech and not of LGBT rights and recognition seems a little disingenuous to me and some other folks who have commented on this piece and why wasn't this espoused long before the present impasse?

There needs to be some major changes in the strategies on public advocacy on LGBT issues and a clear separation of persons who themselves seems so conflicted that they cannot speak in their official capacities and alternate as it seems fit. Conflict of interest indeed.

Adding insult to injury that in the middle of the furore that is cementing of free speech suppression perceptions in the national pysche JFLAG chooses to launch a media guide on how journalists should use or not certain terms, the RJR interview with Dionne Jackson Miller was clear as the snickers in between the dialogue with Jaevion on May 22nd just indicated the madness of it all as she asked him "You don't think that that might stir resentment amongst professional journalists who are saying who are you to be telling me what to ask?" sometimes I wonder if the J is in the real world? George Davis of Nationwide radio also made dissenting remarks as well to the effect that what right have they (JFLAG) to tell journalists what to say, one could easily see how this also plays into the belief that freedom of expression is being stifled, such a glossary or guide should have been out and on their website eons ago as was agreed in a meeting I attended when Dr Robert Carr was alive and the Chair of the then management committee but such are the repercussions of late action and poor pro-activity.

Here is the article by Jaevion Nelson (limited free viewing, paid subscription may be needed to see it in full)

Freedom of expression/speech is arguably one of the most fundamental rights we enjoy. If nothing else, Betty-Ann Blaine, Daniel Thomas and Shirley Richards, who have been at the forefront of recent protests at the University of the West Indies, subsequent to the removal of Professor Brendan Bain as head of CHART, are right about its importance.

While the public has been misled into believing that the Bain-UWI-Civil Society issue is about freedom of expression, it gives us an opportunity to have a discussion on this important issue.

Ever so often, an alarm is raised about a possible threat to this important right and we are prodded into some sort of action. What really is freedom of expression? How is freedom of expression being threatened and by whom? What does the Constitution of Jamaica and international law say about freedom of expression? How do we protect this right? These are questions we should be asking regardless of our conviction on the Bain issue or gay rights.

According to the Association for Progressive Communications (APC), "freedom of expression is a principle contained in various human rights documents. Its objective is to ensure that people are able to communicate and express opinions, in public, private, either written or spoken, without the interference of the state or others."

Section 13(3)(c) of the Charter of Fundamental Rights and Freedom guarantees this. Article 19 of the Universal Declaration of Human Rights (UDHR), states that "Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers." The International Covenant on Civil and Political Rights (ICCPR), which Jamaica became party to on December 19, 1966, articulates that (1) "Everyone shall have the right to hold opinions without interference" and (2) "Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice."

Simply put, it means that people do have a right to have dissenting views on any issue. Secularists are free to express their views about religion and the need to separate the Church from the State. Pastors can say casino gambling and flexi-work week are dangerous and should not be supported. Gay rights advocates can say that Parliament has no business in their bedroom. Christians can certainly say homosexuality is 'unnatural' and is immoral.

NOT AN ABSOLUTE RIGHT

One thing missing from the chants and protests is the fact that freedom of expression is not an absolute right; that there are limitations. As APC notes on their website, "it generally only has applicability where the purpose of expression is lawful, and where the act of expression does not infringe on the human rights of others."

Article 19(3) of the ICCPR further states that "The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; [and] (b) For the protection of national security or of public order (ordre public), or of public health or morals."

With rights come responsibilities. It is important for us to be mindful that we don't harm or restrict the rights of other people in exercising or enjoying our freedom of expression. Those who are overcome with anxiety that this right is being threatened must consider the fact that people, regardless of position in society, will and must be held accountable for what they say.

I do concede that in some cases when people are held accountable for what they have said about a minority group, it is not always justified. Human rights activists must understand that balance is critical in this regard. Not everything said is necessarily offensive and no matter how ridiculous something may sound, it is not always reason to lobby for sanctions to be applied to an individual. The oppressed should never become the oppressor.

Jaevion Nelson is a youth development, HIV and human rights advocate. Email feedback to columns@gleanerjm.com and jaevion@gmail.com

Readers you decide it is clear to me that there is just some aimless movements in as far as advocacy is concerned and it just stinks.

Peace and tolerance

H

Supreme Court throws out LGBT rights activist's case against 3 TV stations

The Jamaican Supreme Court threw out the case brought against television stations CVM TV, TVJ and PBCJ on November 15th on their refusal to air an ad/PSA (paid ad used in the case) recorded with the claimant Maurice Tomlinson and Yvonne Macallah Sobers of Families Against State Terrorism, FAST asking for tolerance. Radio Jamaica's Dionne Jackson Miller on her show Beyond The Headlines discussed the ruling with the attorneys for the parties involved. Bear in mind that radio Jamaica is the sister station to one of the TV stations that was sued by Mr Tomlinson (audio below) please pay particular attention to the lawyer for Public Broadcasting Commission of Jamaica, PBCJ Miss Taverna Chambers comments @ 15:35.....

Attorney for Tomlinson Lord Anthony Gifford says the gay activist is eager to appeal even as the issue of costs is to be determined by the courts. Meanwhile, Tomlinson is also seeking to take legal action against the immigration authorities of Trinidad and Tobago and Belize, saying their laws discriminate against homosexuals seeking entry into those countries. Lord Gifford is representing him in this case as well, see: Caribbean Court of Justice reserves judgement on Maurice Tomlinson case on barred entry due to sexual orientation

here is the video in question:

When I checked for a copy of the judgement online it was not available but I implore you to rely on the reports and the discussion thus far, as soon as it is available it will be shared.

meanwhile Barbara Gayle, Justice Coordinator of the Gleaner also reported

THE RIGHT of freedom of expression does not give anyone the right to use any other person's property to disseminate his views, the Constitutional Court ruled yesterday when it threw out a claim against three television stations.

Gay rights activist attorney-at-law Maurice Tomlinson had brought the claim against them.

"This is a landmark ruling for freedom of expression," said attorney-at-law Georgia Gibson-Henlin who represented Television Jamaica Ltd, one of the three defendants.

Gibson-Henlin said it was one of the first rulings under the Charter of Rights and Freedom as to whether it applied to private rights.

"I believe it is one of the first rulings that affirm the importance of editorial and journalistic discretion," said Gibson-Henlin.

She said the claimant indicated that he was going to appeal the ruling and she added that media would be vigorously contesting any appeal.

The other defendants in the case were CVM Television Ltd and the Public Broadcasting Corporation of Jamaica. The issue of legal costs will be decided by the court at a later date.

Tomlinson, a Jamaican national and an advocate for changing laws and attitudes in favour of homosexuals, had asked the three defendants to broadcast a 30-second video for a fee, speaking to the issue of accepting homosexual men for who they are.

The defendants did not respond and Tomlinson filed a claim in which he contended that the refusal amounted to a breach of fundamental rights and freedoms guaranteed by Chapter Three of the Jamaican Constitution. He asked the court to declare that his rights were breached and also make an order compelling the defendants to broadcast the video.

In its unanimous decision, the court comprising Justice Paulette Williams, Justice Bryan Sykes and Justice Leighton Pusey, held that Tomlinson had sufficient interest in bringing the claim because he was a Jamaican national and the alleged breach took place in Jamaica.

The court pointed out that the Charter was enforceable against the State and by one private citizen against another. It said that Section 13 of the Charter made it possible for one private citizen to enforce the charter rights against another private citizen. The court said the right to freedom of expression was more than just a speech. It included the freedom to express and communicate ideas whether orally or in print or by other means of communication.

Tomlinson, the court said, was obliged under Section 13 of the Charter to respect and uphold the rights of others, including TVJ and CVM, and their right included the right not to speak out, and so could not be compelled to speak Tomlinson's message.

ENDS

RJR Communications group Manager Gary Allen also said he he was pleased with the ruling and welcomed the judgement as he said media houses reject ads almost on a daily basis, he noted that if the media houses had lost it would have opened a huge chasm in as far as accepting the ad is concerned. "From our perspective the critical issue here was whether or not as an entity that has a license that we are held accountable for and the content that we publish we are solely held accountable for it; whether or not someone could force us to publish something and if we disagreed then we would still be held accountable and the person could publish what they will."

here is how TVJ carried the story:

a question to provoke our minds, how does one strike a balance in this case?

76crimes reported that Mr Tomlinson commented:

So, the TV stations, who operate under a public trust in the form of a broadcast license, have the court-sanctioned right to ignore the lived reality of an entire segment of the population (vulnerable gays) in order to patronize the group campaigning against them! If us gays want equal airtime to counter the hateful falsehoods being spread about us, we should just set up our own TV station! Simple, enough right? Well, not quite. You see, there is the HUGE matter of acquiring a license!

Please note that at no time did we say the stations HAD to air the tolerance ad. We simply said that, in the public interest, the stations should ensure that they acted REASONABLY in making their decision whether or not to air. Was it reasonable for the stations (especially the public broadcaster who has a statutory obligation to promote respect for the rights of citizens, such as gays) to simply refuse to air the ad because they did not want to anger the powerful fundamentalist churches? Is there ANY concept of separation of church and state in Jamaica?

I hope my Jamaican LGBT family and our allies realize just how much work we have to do in order to achieve full equality. I hope this decision makes you MAD enough to actually DO something for the cause of LGBT liberation. All the powerful organs of the state appear to be working against us and in cahoots with the homophobic factions of the church. We need to be LOUD AND PROUD to claim our RIGHTS as no one is going to hand them to us on a silver-platter (or on the silver-screen).

meanwhile here is CVM's report which seemed very balanced

This test case certainly brings a lot it seems forward but was Mr Tomlinson too demanding or are the stations free to refuse any ad as they claimed they do almost daily especially when the ad though of less production value in my eyes has not intimated any untoward act or language that would affect the public. One thing that has been clear to me for some time is that in asking for such a virtuous ideal it must be already demonstrably clear in the requester's camp and how the homeless MSM issue has played out in the last four plus years the lack of interest and the dismissive nature of an ever cynical public must not be over looked.

Let us see where this one goes folks as the appeal looks set in coming from the Tomlinson camp. 

UPDATE Nov 18, Press release on the planned appeal

AIDS-Free World to Appeal Supreme Court Decision in TV Challenge 

Kingston, Jamaica — AIDS-Free World is shocked and disappointed by today’s ruling by Jamaica’s Constitutional Court in favor of three Jamaican television stations that refused to air a paid television ad promoting respect for LGBT people. We fully intend to appeal this judgement, as we feel the decision is wrong in law and wrong in principle. 

The challenge—the first constitutional challenge under Jamaica’s new Charter of Fundamental Rights and Freedoms—resulted from the stations’ refusal to air AIDS-Free World’s 30-second spot promoting dignity and respect for LGBT persons in Jamaica. The stations persisted even after the Broadcasting Commission of Jamaica confirmed that the ad did not breach any broadcasting rules. Regrettably, the Court decided that the rights of powerful television broadcasters supercede the rights of citizens to free speech and respect.

The innocuous ad promoting tolerance was created as part of AIDS-Free World’s broader HIV advocacy strategy in the Caribbean, which includes impact litigation, human rights trainings, and communications campaigns. Those efforts address discriminatory anti-gay laws and attitudes that fuel the spread of HIV by driving LGBT underground, away from effective HIV prevention, care and treatment services.

The banned ad starred two Jamaicans, including claimant Maurice Tomlinson, AIDS-Free World’s Legal Advisor, Marginalized Groups. The television stations had argued, illogically, that by allowing an ad that promotes respect for all Jamaicans, regardless of sexual orientation, they would be supporting an illegal activity.

Today’s 100-page decision underscores the critical importance of AIDS-Free World’s upcoming constitutional challenge to Jamaica’s anti-sodomy law. Jamaica’s discriminatory laws are perpetuating a destructive and divisive culture of homophobia and are complicit in sustaining a public health crisis.

###

View the release on our website.

AIDS-Free World is an international advocacy organization working for more urgent and effective global responses to HIV and AIDS. www.aidsfreeworld.org

ENDS

also see:
Settle the Score on CVM TV's Live @ 7 (26.08.11)...the JFLAG ad campaign

Jamaicans weigh in on rejection of gay ad ......(2011)

TVJ Wimpy On Gay Ad Furore (Gleaner Letter)

recall this also from 2011?: 

Blow to gay ad - TVJ rejects J-FLAG’s PSA ....... J-FLAG says rejection of PSA unfortunate that ad/psa (not sure why they were used inter-changeably) was a second ad to a first which also had Mr Tomlinson therein, question is why was that ad discontinued when it was aired for some time?

Here is that very first ad in the tolerance ad thrust via Jamaica AIDS Support et al which I liked and which should have been worked to the core before ramping up the campaign which led to rejection

here was my two cents on the second video at the time with Christine Straw and her brother (see that video/ad below)

The Straws ad that was rejected in 2011

Was it bad timing or overkill in the various campaigns by Tomlinson who seems to want to have his own way versus JFLAG that seems to prefer a sluggish or slower pace for advocacy?

UPDATE November 19 letter to the Gleaner:

Gay Ad Ruling A Travesty

THE EDITOR, Sir:

The court rejection of Maurice Tomlinson's suit against three TV stations for not airing his public service announcement calling for tolerance of gay rights is not a "hallmark ruling for freedom of expression", as the attorney representing one of the defendant TV stations has said, but another hallmark ruling for property rights, and a sad reflection on the deep homophobia which afflicts not only the Jamaican people, but more so the Jamaican State.

No one has been under any illusion that corporate media represent the interests of the rich and powerful (the capitalist class, to be more precise) but now the court, by its ruling against the LGBT community, demonstrates that private property is the yoke of slavery around the necks of ordinary Jamaicans, not just LGBT.

So while PBCJ is supposedly public property, the managers also believe, like private media, that gays be damned because this is the position of private property.

Nearly two years after being elected prime minister, Portia Simpson Miller has done zero to advance the human rights and civil liberties of LGBT Jamaicans. She must be condemned as a coward.

This homophobic culture, which even so-called Justice Minister Mark Golding pays homage to on every occasion that he is called upon to act against it, is an indictment against a backward and ignorant ruling class.

No wonder the society is in the mess it finds itself.

LLOYD D'AGUILAR
Campaign for Social and
Economic Justice

I wonder if Mr D'Aguilar read the judgement and why has the original challenge in 2011 by AIDSFREEWORLD that Mr Tomlinson is employed stopped? see: The First-Ever Legal Challenge to Jamaica's Anti-Gay Laws

The judgement is now available

download HERE

UPDATE March 18.03.14 No costs Awarded to parties

The overall take on this is that the court will check to see the enrichment of the constitution as per case and awarding costs, what was disturbing though in a radio interview on RJR is that Mr Tomlinson denied when asked whether the expected appeal decision has been made to appeal the original decision yet the press release from AIDSFREEWORLD excerpted above is clear as to the action they and Mr Tomlinson had intended to take which once again speaks to clear honesty or lack thereof, his exact words were "The decision has not been made to appeal or to not appeal, no decision has been made on that point yet," although time is also passing as there is a 6 to 8 week limit following the ruling to file an appeal. Also bearing in mind his attorney Lord Anthony Gifford had indicated as well that an appeal was coming, who are we to trust in such sensitive matters?

The court said that cost awarded in these matters (one private citizen suing another in a constitutional matters) will be governed by the overarching principle of not discouraging the pursuit of constitutional claim irrespective of the number of private parties who oppose or seeking to support the state's posture in the litigation this is the first case in the new charter of which the enforcement of the bill of rights was attempted in horizontal litigation meaning that citizen to citizen; there is no doubt that a significant step has been taken in Jamaican constitutional law by this decision they also said this case could not be said that the claim was frivolous or had little chance of success and they concluded the claimant had not acted unreasonably and that the case raised important issues of law and how the constitutional law relates to individuals.   

Peace and tolerance

H

J-FLAG finally shows open Support for the Constitutional Challenge to Buggery Law by Javed Jaghai

Why oh why has it taken so long for JFLAG to respond to repeated calls from frustrated community influentials to show their open support for the challenge by their own Education Officer Javed Jaghai is a mystery to us all objective thinkers but here comes a press release from them, too little too late if you ask me as it looks as if it is Javed and his team on his own doing this. It is unbelievable the step-n-fetch it modus operandi of JFLAG they always seem to be catching up with the rest of the community. 

Word of this case and that of Mr Tomlinson's tolerance ad matter have been in the public domain forever and it is now that JFLAG finally comes with a release, where is the leadership and taking the reigns? The limp-wristedness continues it seems. The release read as follows:

J-FLAG Supports Constitutional Challenge to Buggery Law

J-FLAG supports the constitutional challenge to the ‘buggery law’ by our Education & Outreach Officer, Javed Jaghai.

As Executive Director, I accompanied Javed to court on Tuesday, June 25, 2013 in order to get a first-hand account of the proceedings and also to explore the possibility for J-FLAG to formally join the proceedings in this landmark constitutional challenge. We will soon update you on the progress of this endeavour.

We were advised by our legal representative that the Chambers of Justice Carol Edwards would be too small to accommodate all interested parties and their lawyers, and as such we should try to limit the numbers of our supporters. This turned out to be true, and we had to move to a court room in order to accommodate the almost two dozen lawyers, including three Queens Counsels, and their clients.

The outside of the Supreme Court was full of media personnel who were eager for coverage of Javed and his team as they entered and exited the court. There was also a small but vocal group of women who expressed their opposition to any changes being made to the buggery law.

At last count there are eleven (11) interested parties opposing the claim who will be joining the Attorney General who represents the Government of Jamaica in constitutional matters such as this.

To this date they are:

1. Lawyers Christian Fellowship (LCF)

2. Hear the Children’s Cry (Betty-Ann Blaine)

3. Citizens for Truth and Justice (Catholics)

4. Love March Movement

5. Jamaica Coalition for a Healthy Society (JCHS)

6. Jamaica Association of Evangelicals

7. Ethiopian Orthodox Church

8. Independent Churches (Bishop Adegold)

9. Holiness Christian Church

10. Christian Brethren Assemblies of Jamaica

11. Church of God in Jamaica.

Note: The Marcus Garvey Movement has applied to be joined as well but that application has not yet been served.

Lead Attorney for the claimant, Maurice Tomlinson, agreed that the groups should be allowed to join in the matter since the case is of national importance and therefore all views should contend.

Essentially, Justice Edwards collapsed a number of the groups into one and called them ‘The Church’. Only LCF, JCHS and Hear the Children’s Cry will be heard separately.

The content of Javed’s affidavit was brought into question as aspects were said to be hearsay and were therefore deemed offensive to the rules of evidence. The judge requested that the affidavit be amended to remove the offending parts and re-submitted to the court by Friday July 5, 2013 . Another 3-hour case management session has been set for Friday October 4, 2013 to address the substantive administrative matters regarding the proceedings.

This is an exciting time for J-FLAG and the Jamaican Lesbian, Gay, Bisexual & Transgender (LGBT) community in general as this case seeks to determine that the retention of the anti-buggery law in its current form is a contravention of our constitutional rights to privacy and equality before the law. The buggery law criminalizes certain sexual acts of consenting adults in private and this is something that J-FLAG and many of its partners in civil society finds to be an injustice and offensive to the concept of social equality.

We look forward to the resumption of this case and by our participation we expect to make an important contribution to the improvement of the quality of citizenship and life of LGBT Jamaicans.

ENDS

meanwhile here is the ED on radio last evening, an interview I missed with the new President of the Lawyers Christian Fellowship

JFLAG Position Statement on Upcoming Conscience Vote on Jamaica’s Buggery Law

(photo scanned from an article in print in 2012)

J-FLAG welcomes the government’s announcement that a conscience vote will be scheduled for the promised review of the buggery law. This commitment was one of the major contributions of the current Prime Minister in the lead up to the 2011 General Elections and was a bold and decisive political move that we laud the Prime Minister for making.

Sections 76, 77 & 79 of the Offences Against the Persons Act of 1864, collectively referred to as ‘the buggery law’, criminalize “the abominable crime of buggery” (defined as anal sex with any person or animal) and “gross indecency” (intimacy) between men. We submit that these catch-all definitions are inappropriate since they criminalize the sexual relationships of consenting adults in private and possibly violate the constitutional right to privacy of the home.

J-FLAG’s position on the buggery law has evolved over the years. Our appeals for the definition of rape in the Sexual Offences Act to be gender, orifice, and object neutral have been met with resistance, and therefore in the interest of protecting the most vulnerable Jamaicans we are not agitating for a repeal of the buggery law. Instead, we are requesting an amendment to the law to differentiate between consensual and non-consensual anal penetration.

As our parliamentarians engage in this review process, we urge them to consider the following:

1. We suggest that Section 76 of the Offences Against the Person Act read: “Whosoever shall be convicted of the abominable crime of buggery, committed with any person without consent, shall be liable to be imprisoned and kept to hard labor for a term not exceeding ten years.” – This amendment will serve to decriminalize the intimate acts of consenting adults in private and to affirm the Prime Minister’s position that she is not interested in “prying into the private business of anyone”.

2. We believe that bestiality should be a separate offence as is the case in Barbados and Trinidad & Tobago which have similar buggery prohibitions. The conflation of buggery and bestiality is problematic and inappropriate because it isan affront to the human dignity of consenting adults who should be free to engage in acts of private sexual intimacy.

3. We ask that Parliamentarians clarify the definition of an “act of gross indecency” pursuant to Section 79 of theOffences Against the Person Act and kindly request that this section be brought into alignment with the proposed ethos of no longer criminalizing consensual same-sex intimacy in private.

To reiterate, J-FLAG wishes for legislators to understand that we are calling for a reading-down of the buggery law to de-criminalize the acts of consenting adults in private, NOT the repeal of the law itself.

We are open and available to assist our parliamentarians with information to act in good faith in their review of the relevant sections of the statue and anticipate a rational debate that recognizes the rights and honours the inherent dignity of every Jamaican citizen.

also see: Buggery law conscience vote for parliament soon ...

Read this document on Strengthening the Charter of Rights

also

On June 25, the Supreme Court will decide whether to proceed with a constitutional challenge by a gay man to the colonial-era buggery law. Here are the key facts in the case of Javed Jaghai v The Attorney General of Jamaica.

UPDATE JUNE 20 2013

FOR IMMEDIATE RELEASE
June 20, 2013 | Kingston, Jamaica

J-FLAG URGES MEDIA PRACTITIONERS TO FOLLOW ETHICAL STANDARDS
In recent weeks there has been a spate of negative coverage in the press concerning the Jamaican Lesbian, Gay, Bisexual, and Transgender (LGBT) community. This type of coverage has in several instances reinforced negative stereotypes about gay identity, and used pejorative and incendiary language to sensationalize otherwise innocuous stories.

With reference to a report published in the Jamaica Observer of June 20 under the headline “Gays promise ’hell and powder house’ Sunday”, the author revealed that the source of his/her information was an email sent to the newspaper by “an apparent homosexual group”. For the editorial team to feel it was reasonable to treat this email from an unknown source with the level of significance it has given it is irresponsible. For them to go further and to publish these details in an already tense social environment under a sensationalist headline is reckless and unethical. As in previous interventions with the Press Association of Jamaica (PAJ), J-FLAG urges all media practitioners to follow ethical standards in the pursuit of their noble profession.

J-FLAG supports the democratic right of church groups to peaceful assembly and the exercise of their freedom of speech, and religion. Indeed, we celebrate this freedom; however we urge that the rights and freedoms of LGBT Jamaicans be similarly recognized by all citizens.
We reserve the right to disagree, both publicly and privately, with what we perceive as concerted efforts to limit the quality of citizenship of sexual and gender minorities in Jamaica.

J-FLAG, in its capacity as representative for a vibrant community of Jamaican citizens of diverse sexual and gender identities, is willing to work with all stakeholders in the media to ensure balanced and fair reporting of issues affecting the LGBT community and the interest of the broader public.

An interview on Nationwide Radio 

Tolerance Ad case - Day 2 - Maurice Tomlinson v TVJ, CVM and PBCJ

also see more details on GLBTQJA as well

Day two in the Supreme Court saw the lawyers representing the stations sought to dismiss the merits of the arguments by the claimant Mr Maurice Tomlinson, the stations have been accused of breaching the constitutional rights of the activist attorney over the refusal to air a commercial promoting tolerance for homosexuals. (see ad below) 

What is being sought:
1) A declaration that in refusing to air the ad the stations had breached Mr Tomlinson's constitutional rights to freedom of speech as well as freedom to disseminate information, opinions or ideas through any media.

2) An order for Television Jamaica TVJ, PBCJ and CVM TV to air the ad in exchange for the standard fee and also damages.

Lord Anthony Gifford wrapped up his submissions that he started yesterday which included precedence set elsewhere in similar cases, he also asked the court to recognise that private media houses do not have total editorial freedom, he said the US supreme court made that clear in their context and he is asking the court to make such a finding on behalf of his claimant in this context, that broadcasters have to operate in the public interest and entities do not have absolute rights. Justice Leighton Pusey asked if that application of that principle in the US is coloured by their doctrine whereby they have had freedom of the press as a specific constitutional right and that the broadcasting industry was developed after that, in our context it is not so. Lord Gifford responded that freedom of expression had always been protected. Broadcasting houses are mandated via their licenses to operate in the public interest as they do so in a particular space i. e. the airwaves. It would be useful therefore for the court to issue guidance as to what principles TV stations should use in deciding to air materials submitted to it.

Are stations obliged to give reasons and so on are to be considered? Justice Pusey had a difficulty with PBCJ component in particular as it is a public entity and how someone is able to get a video aired there. He asked if this ad is allowed to be aired will others also be allowed and the screening processes for same, Lord Gifford suggested that one should look at the terms of reference. 

Television Jamaica's, TVJ attorney Georgia Gibson Henlin addressed the court where she spent more time on two main arguments one of which was that the claimant Maurice Tomlinson has no standing in the matter that is he is not entitled to bring this case before the court she also argued that in any event the Charter of Rights does not allow Mr Tomlinson to sue TVJ a private entity the issue of whether or not a law suit can be brought under the charter of rights without any government involvement is one of the important issues in this case. The vertical application of a challenge was mentioned as usual reason for a constitutional challenge such as this however this action by Tomlinson et al is considered a horizontal application (excluding government) suing another private entity. 

She also claimed that previous tolerance typed programs resulted in acts of violence to persons involved so that form of expression would not be justified. She continued that Mr Tomlinson does not have the right to use TVJ's property to carry his message as the charter does not give him the right to say he can use their facilities, she used a freedom of expression example that persons have a right to freedom of speech but that the individual does not have a right to make a speech in someone's front yard. 

Mrs Gibson Henlin says that case law from other countries with similar constitutions support her contention that the charter of rights does not permit a private citizen to sue another private entity as is being done in this case.

She faced intense questions on this issue from Justice Brian Sykes stating that the charter does not compel the conclusion that some kind of government action is needed before one private citizen can sue another. 

On the issue of Mr Tomlinson's standing Mrs Henlin told the court that Mr Tomlinson is known as a "poser" or "tool" as he does not live here and is being used as a tool by his employer the international organization called AIDSFREEWORLD, she says the ad in question was part of the campaign to target homophobic laws since he himself has suffered no harm because of the ad not being played and because AIDSFREEWORLD is not based in Jamaica the case should not go forward. Mrs Gibson Henlin concluded her submission subsequently that in the case of the right to freedom of expression in particular that of a private citizen cannot sue another private entity, there is no general right of one private person to sue another and must seen on a case by case basis and in this particular case involving freedom of expression there is no such right as under the charter.

They day concluded with lead counsel for CVM TV Mr Hugh Small commencing his arguments. His short introduction dealt with Mr Tomlinson's rights but that the court cannot offer Mr Tomlinson relief as if in doing so not also breach CVM TV's rights as well. Mr Tomlinson therefore cannot assert his rights to the extent that it infringes on his client CVM.

there was a small outdoor stand by the Emancipation Park statue yesterday and TVJ carried the story

below is the original video that was aired for a time and discontinued by the agencies who sponsored it:

here is Mr Tomlinson's ad specific to this case:

Legal Notes - Homophobia and human rights abuses

Malene Alleyne

NOT in this Cabinet. Not in this Charter. Not in this country. This seems to be the sentiment in Jamaica towards Lesbian, Gay, Bisexual and Transgender (LGBT) persons. Indeed, LGBTs continue to experience discrimination on the basis of their sexual orientation and gender identity; intolerance is tolerated and discrimination seems to receive mild justification.

Sentiment aside, however, there can be no justification in law for this treatment. Jamaica has a positive obligation under applicable international human rights instruments to respect and ensure the human rights of all persons, including LGBTs. These obligations include, among other things, adopting laws that protect against discrimination and prevent or change discriminatory practices. Below is an overview of how LGBT discrimination is treated under national laws and of how these laws compare to international standards. This overview should be of importance to all Jamaicans since it concerns the subject of human rights, which is everyone's business.

The Constitution, as revised by the Charter of Fundamental Rights and Freedoms ("Charter"), guarantees the right to freedom from discrimination on the grounds of "being male and female" as well as "race, place of origin, social class, colour, religion or political opinions". This language is problematic in that it does not explicitly prohibit discrimination based on sexual orientation or gender identity. This is a significant departure from relevant international human rights instruments, which contain wider and more inclusive language.

Under the International Covenant on Civil and Political Rights ("ICCPR"), for example, each State Party has an obligation to ensure to all individuals the rights recognised in the ICCPR, without distinction of any kind such as "sex". The ICCPR also requires that national laws prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as "sex".

This category of "sex" has been interpreted by relevant jurisprudence as including gender identity and sexual orientation. The inclusion of this category is therefore legally significant. In fact, when Jamaica was revising its Constitution, the Constitutional Commission recommended that the revised Bill of Rights explicitly refer to discrimination on the ground of sex. The United Nations Human Rights Committee also expressed a hope that this recommendation would be implemented. The subsequent exclusion of this category in the revised Constitution therefore seems to be less of an oversight and more of a deliberate statement — not in this Charter.

Another constitutional guarantee of relevance to this discussion is the right to equality before the law. Equality is also enshrined in applicable international human rights instruments and is a fundamental principle in international law. In Jamaica, however, there are laws which are arguably discriminatory in their treatment of same-sex couples. An example that has received widespread attention is the Offences Against the Persons Act which criminalises the "abominable act of buggery." This law also punishes men who commit any "act of gross indecency" with another male in public or private.

Another example is the Property Rights of Spouses Act which effectively denies same-sex couples the property rights afforded to heterosexual couples due to the limited definition of "Spouse". Spouse, under this act, is defined as including "a single woman who has cohabited with a single man as if she were in law his wife for a period of not less than five years" and vice versa.

Based on the above, it seems that some of Jamaica's laws not only fail to guarantee to LGBTs equal and effective protection against discrimination, but also actively perpetuate discriminatory practices. Even if these laws can stand under the scrutiny of the limited language of the Constitution, they are still in breach of Jamaica's obligations under applicable international human rights instruments such as the ICCPR. It is important to state in this regard that, under international law, Jamaica has a legal duty to honour its treaty obligations in good faith. It should also be noted that under the Vienna Convention on the Law of Treaties, a State cannot use domestic law, including the Constitution, as an excuse for failing to honour its treaty obligations. Lastly, I would argue that the principle of non-discrimination is a norm of jus cogens under international law from which no derogation is permitted.

In conclusion, it is recognised that the scope of LGBT rights is a very sensitive topic in Jamaican society and that religious, cultural and moral views have played a central role in the debate. In fact, the beauty of living in a free and democratic society is that each person is free to form his/her own views on this controversial topic. However, from a legal standpoint, these views cannot be allowed to translate into actions that violate the human rights of any person. While cultural sensitivity is important, Jamaica is nonetheless bound by international human rights obligations which must be honoured as a matter of law. Most importantly, despite our fears or feelings, it must be remembered that human rights are fundamental, indivisible, universal and inherent to all human beings. In this sense, the human rights of LGBTs should be defended, not only because international law requires it, but also because human dignity demands it — in this Cabinet; in this Charter; in this country.

Malene Alleyne is an Associate at Myers, Fletcher & Gordon and is a member of the firm's Commercial Department. 

Malene may be contacted via malene.alleyne@mfg.com.jm or www.myersfletcher.com. 

This article is for general information purposes only and does not constitute legal advice