Stephen Vasciannie
LAST WEEK, I started looking at aspects of the proposed Charter of Rights, and especially the interpretation of the Charter being offered by various religious groups.
These groups have argued, in essence, that if the right to privacy is enshrined in the Jamaican Constitution by virtue of the Charter of Rights, this could have the effect of making homosexual sex legal in Jamaica - through the backdoor, so to speak.
I have suggested that there are some problems with the interpretation being put forward by the religious groups. In the first place, although the Charter of Rights does contemplate a right to privacy, this right is clearly framed in the context of freedom from unjustifiable intrusions on a person or into one's home. There would thus seem to be an untenable leap from this type of right to one giving rise to homosexual sex.
Secondly, the Joint Select Committee of Parliament, which put together the draft Charter of Rights worked with outstanding legal support from an advisory group that included Dr. the Honourable Lloyd Barnett O.J., Dr. the Honourable Kenneth Rattray OJ, Q.C., Mrs. Shirley Miller Q.C., Mr. Dennis Daly Q.C., and other lawyers. The Joint Select Com-mittee, in its detailed report on various provisions, pointed out that it was not in favour of prohibiting discrimination on grounds of sexual orientation.
Thirdly, in my last column I pointed out that if the religious leaders are correct - and the right to privacy somehow automatically means that persons will be allowed to take part in homosexual sex - this would have unusual and untenable implications in the law. Specifically, if the right to privacy could allow you to commit the crime of buggery simply because you are doing it in private, then that same right of privacy would allow you to commit other crimes, as long as you do so in private - murder, rape, incest, without any clear end to the list of possibilities.
UNITED NATIONS
But, in fairness, the legal arguments cannot be left there. The religious groups in presenting their privacy line of argument could possibly score points by referring to the approach to "privacy" taken by the United Nations Human Rights Committee in the Toonen Case of 1994.
In that case, the United Nations Human Rights Committee found that a Tasmanian law that prohibited homosexual sex was in breach of Article 17 of the International Covenant on Civil and Political Rights, a treaty to which Jamaica is party. So, the argument would run, Jamaica is in breach of its international obligations because it criminalises homosexual sex, contrary to the meaning of Article 17.
As a matter of law, however, there are various plausible responses to this approach. To begin with, pronouncements of the United Nations Human Rights Committee are simply recommendations; they are not binding rules of law. Thus, it would be open to Jamaica simply to say that the country does not accept the recommendation concerning the meaning of Article 17 of the International Covenant on Civil and Political Rights.
The force of this point should not be underesti-mated. If the U.N. Human Rights Committee could make law for Jamaica, then the right to privacy, as interpreted by the U.N. Human Rights Committee would be binding as law from the time of the Toonen Case, and Jamaica's law on buggery would now be invalid. Clearly, however, that law is still valid today, so it is accepted that the Toonen Case is only a recommendation, that we may opt not to follow.
NORTH AMERICA
The religious groups have noted, however, that the United States Supreme Court and courts in Canada have recently given an expansive reading of the right to privacy. This is true; so that, if we were to rely on international trends as to the meaning of privacy, the religious groups could have a case - a point which, presumably, may influence the religious right in the United States, including Pat Robertson.
Significantly, however, inter-national trends do not in themselves constitute binding rules of law. A Jamaican court, while interpreting the Jamaican Constitution, would be obliged to rely on the Jamaican understanding of the meaning of the right to privacy, and here the Report of the Joint Select Committee would be important, as would statements made by the Attorney-General as to the meaning of the right to privacy. These con-siderations would weigh more significantly in the balance than decisions from North American courts.
Moreover, in any constitutional interpretation of the right to privacy, the Jamaican court would need to take into account majority sentiments on homosexual activity.
Because most Jamaicans are clearly against a right to homosexual sex, any attempt to change the buggery law would need to be made very clearly. I think even the Judicial Committee of the Privy Council would accept that proposition.
Stephen Vasciannie is a UWI professor and a deputy solicitor general in the Attorney-General's chambers.
