The Senate fully supported passage of the Trusts Act 2019 on Friday, a week after the debate was almost subverted by claims that its “personal relationships” definitions were gay friendly.

The Bill explains that “personal relationships” includes: “every form of relationship by blood, adoption, marriage or cohabitation, regardless of whether the law of any jurisdiction recognises the validity, legitimacy or existence of the relationship”.

To Opposition member, Senator Lambert Brown, the use of the word “cohabitation” in the definition implied acknowledgement of same sex relationships” as well as persons already in relationships having a relationship with a third person, suggested that the government was trying to introduce gay rights through the back door.

“Obviously we copied this from somewhere… I don’t care where it came, we not going through the back door here,” Brown insisted.

It was a surprising response from the senator, who had been there for more than one term while the Bill was, among others, linked to Jamaica’s aspiration to set up itself as a major international finance centre and which passed parliamentary reviews involving members of both sides of the Senate, as well as the House of Representatives.

It was even more surprising in that it had also already survived a debate in the House of Representatives in which the parliamentary opposition gave its full support and voted unanimously in support of it on February 26, 2019, and was welcomed on June 14 by the Opposition’s spokesperson on these matters in the Senate, Sophia Binns, who described it as a very important piece of legislation.

“It represents another plank in the continuation of legislation aimed at establishing Jamaica as an international financial centre. The commendations really extend to both sides, including former Minister of Justice Senator (Mark) Golding for the work he did under the last administration,” Senator Binns noted.

However, despite political connotations which emerged from Senator Brown’s intervention, Senator Kamina Johnson Smith agreed to a suspension of the debate then to respond to the matters raised by Brown.

The issue, however, as reported in the media caught the imagination of social media and started a debate about efforts to introduce gay-friendly legislation in Jamaica.

When the debate resumed on Friday, she noted that despite her opposition to the position taken by Brown on the “personal relationships” definition, a minor adjustment would be made to the clause to ensure there was no misunderstanding.

However, it would seem that Senator Johnson Smith was reacting to a possible failure of Senator Brown to have read the bill thoroughly, as clause 5 (2) actually reads as follows:

“5(2)…A trust is invalid and unenforceable in Jamaica to the extent that (a) it purports to do anything contrary to the laws of Jamaica; and (b) it confers or imposes any right or function the exercise or discharge of which would be contrary to the laws of Jamaica.”

The Bill seeks to provide for the establishment and operation of trust services in Jamaica, in relation to both Jamaica and foreign trusts. It repeals the Trustee Act, and also seeks to create a modern statutory instrument which addresses the most pertinent principles of trust law.

Among other things, the Bill also provides for the settlement of actions against trustees by alternative dispute resolutions; and for the power to relieve trustees from personal liability and indemnity of trustees by beneficiaries.

Senator Johnson Smith informed the Senate that despite the fact that there was nothing in the Bill to suggest that the Government would be giving legal credibility to homosexuality, they had decided to avoid any controversy by amending the offending provisions to make them clearer.

She said that the expectation was that the Senate would benefit from the reorientation of its intent to codify the common law in relation to trusts, to repeal the Trustee Act, to amend sections two, seven and 21 of the Trustees, Attorneys and Executors (Accounts and General) Act, and to provide savings and additional provisions for continuity as well as preserve the validity and enforceability of Trusts.

“The intention behind these acts is of course to modernise our trust law and to ensure that we are able to pull together a suite of legislation in support of the international financial services sector, which will provide us with an effective opportunity for us to deliver higher skilled jobs to our people,” she stated.

She noted that the Act, in its current state, does nothing to change the constitutional provisions by which marriage is defined.

“It does not permit same- sex marriage and it does not amend any other legislation which relates to that matter,” she added.