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Parties wade through pretrial issues in St Vincent buggery law case

Saturday, September 21, 2019

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KINGSTOWN, St Vincent (CMC) – The next hearing in the legal challenges to the buggery laws in St Vincent and the Grenadines (SVG) is slated for November 13 as the parties continue to wade through pretrial issues.

On that date, the court is slated to decide how many days should be set aside for the trial.

On Wednesday, when the matter had its first hearing, the parties agreed that the cases, brought by two gay men, should be consolidated and heard together.

High Court Judge Justice Esco Henry suggested three days be set aside for the hearing, but counsel Shirlan “Zita” Barnwell, who appeared on behalf of the claimants, suggested that four days to a week be set aside.

Justice Henry ordered that disclosure and the filing of documents be completed by October 4.

The claimants are expected to call six witnesses each, while the State is expected to call 10.

Karen Duncan-Gonsalves and Kesron Walters appeared on behalf of the attorney general, who was off the island on official business.

Gay Vincentians Sean Macleish, 53, who is based in the United States, and Javin Johnson, 22, who successfully claimed asylum in the United Kingdom in 2017 have brought the legal challenges against SVG's buggery laws.

The men are arguing that the laws, from British colonial rule, are discriminatory, inhumane, and against the basic tenets of the Vincentian Constitution that protects the rights and freedoms of every citizen, and that they were removed from the UK some time ago.

In a statement on Thursday, Macleish and Johnson said they struggled with discrimination and abuse because of their sexual orientation, enforced by the archaic law and took matters into their own hands, identifying this as the first step for equality for all citizens regardless of sexual preference.

Macleish said the case “is very important, not just for LGBTQ+ Vincentians like me, but monumental for access to social inclusion and equality for all marginalised groups”.

He said that growing up and living in St. Vincent as a gay man, he was made to feel insignificant and less than because of his sexual orientation.

“With so much progress in the world towards equality, very little has changed here, and I still see LGBTQ Vincentians being victimised and harassed because of whom we love.

“We just want to live our lives free of these discriminatory obstacles that the criminalisation of homosexuality fuels. I place my confidence and hope in the judiciary to correct this inhumane injustice because justice is a remedy for pain and a step towards healing and freedom,” Macleish said.

Meanwhile, Johnson expressed elation at the commencement of the legal proceedings.

“I am very happy that this legal challenge has begun! I am committed to making sure that what happened to me in St. Vincent, doesn't ever happen again to future generations of gay people. Thanks to all our legal team who are working so hard for our human rights,” he said.

The men's legal team is led by Jeremy Johnson QC and supported by Peter Laverack of London.

In St Vincent, lawyers Zita Barnwell and Jomo Thomas of Jomo Thomas Chambers are instructed and Hogan Lovells International LLP are the solicitors.

The press statement said that, of special note, is the inclusion of barrister Peter Laverack on the legal team.

Laverack has been centrally involved with both the landmark victory for LGBTQ+ equality in Trinidad and Tobago in 2018, and the victory for marriage equality in Cayman Islands this year.

“As with the victory in Belize, then Trinidad and Tobago, then India, Angola and Botswana, we fully expect justice to be served in the continuing fight around the world for equality and justice for LGBTQ+ people,” the statement said.

Responding to questions at a press conference here on Tuesday, Prime Minister Ralph Gonsalves, who is also minister of legal affairs, noted that the nation's buggery and indecency laws date back to its colonial past.

Gonsalves, who is also a lawyer, further pointed out that once a law is passed, it is presumed to be constitutional until it is overturned.

“So I suspect that the attorney general will seek to help the court with all of those technical, legal issues. It is not a combative thing,” he said.

Gonsalves said he has not instructed Attorney General Jaundy Martin “to fight to the death A, B, or C points”.

“That's not my role. The court has to be helped for the court, in its own judgement, to come to a conclusion,” he said.

Gonsalves said that in the face of the legal challenge, some persons have suggested that his Government amend the laws to decriminalise same-sex activity among consenting adults in private.

He said others have suggested that the Government leave the law as is and allow the court to pronounce on them.

The prime minister further said he is unsure what all the dimensions of the matter are that the claimants would address.

“But, like everybody else, I would await the judgement of the court,” he said, even as he noted that the courts have ruled unconstitutional similar laws in Belize and Trinidad and Tobago, which also faced the same legal challenge.

The prime minster said he has read the judgement from Belize and a summary of the judgement from Trinidad, having been told that the one from Belize was more comprehensive.

Gonsalves said that as he understands the matter, the nub of the case is that criminalising same-sex activity in private, is in breach of one's right to privacy, at least.

He said he was aware that there is a freedom of expression argument, adding, “I never thought that that was a freedom of expression issue, but I am always open to learning… I usually think of freedom of expression in a different way.”

The prime minister said he would be very interested to find out how the Attorney General's Chambers will deal with the matter to help the judge.

He said that on these matters the attorney general would not take a position of defending it to the end, but would say that he has heard the issues and wants to help the court to deal with the matter.

Asked how much of a good chance he thinks his Government stands of winning the case, the prime minister said that the attorney general is joined in the case because the law requires that if a criminal statute is being challenged on the basis that it is unconstitutional, the attorney general is the office that has to be joined.

In July, leader of the Opposition Godwin Friday noted the right of persons to challenge the laws that criminalise buggery in the country.

“It's not unexpected because this is something that has been done in other parts of the Caribbean as well,” said Friday, who is also a lawyer.

“The matter is in the court so I am not going to get too much into it. Just to say that the application that has been made to the court, that is the right of anyone to apply to the court if they feel their rights have been violated and the process will work its way through.”

Friday, also commented on the general issues of same-sex relations, saying, “it is a very contentious matter publicly in St Vincent and the Grenadines and the Caribbean.

“And what has happened in societies all over the world is that these laws and these practices, attitudes change over time and each society has to move along at its own pace,” the Opposition leader said.


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