I write with regard to the letter by Ms Shirley Richards published in Friday's edition of the Guardian under the caption "Jamaica's buggery law no violation of human rights." It is incredibly disingenuous for Ms Richards to rely exclusively on an article written by Prof Stephen Vasicannie while he was serving as Jamaica's Deputy Solicitor General.
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, Ms Richards and her ilk have effectively blocked this very simple and elegant solution.
Be that as it may, the arguments she posited amount to a tortured interpretation of international human rights law as it relates to Jamaica's buggery law. It doesn't take a "mammoth jump" 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.
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 Ms Richards well knows, 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. The Inter-American Court of Human Rights which also reviews states' compliance with the American Convention ruled earlier this year that discrimination against homosexuals violates the convention.
Ms Richards also knows that Jamaica could have settled this matter internally if the Lawyers Christian Fellowship (LCF) which she heads had not convinced our parliamentarians that the law should be saved from any review by our own local courts.
The LCF Web site 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 now carries a ten-year sentence while vaginal rape carries life imprisonment) as they know that would open the anti-buggery 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 Ms Richards is so confident about the validity of the anti-buggery law, why has she 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?
Finally, I understand Ms Richards is a parent. Kindly permit me to ask her if she is so committed to preserving the anti-buggery law that she would wish her own adult child to be sentenced to ten years hard labour for engaging in consensual same-gender intimacy behind closed doors, as is currently provided for in the legislation?
I challenge Ms Richards 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
Former Human Rights Lecturer
University of Technology, Jamaica
