(Jamaica Gleaner) Asserting that the State is being driven by an “agenda” to preserve the country’s buggery laws, the Supreme Court says it is worrying that savings law clauses are being used to prevent scrutiny of laws violating citizens’ rights.
“… It is disquieting that the State would be so driven by what must clearly be an agenda so as to preserve from scrutiny by way of a savings law clause laws which would otherwise infringe rights guaranteed by the Charter of Fundamental Rights and Freedoms (Constitutional Amendment) Act, 2011,” wrote Justice Andrea Pettigrew Collins in a section of a 84-page judgment that affirmed that Jamaica’s buggery laws are immune from challenge in the courts.
“But it is, sadly, for Parliament – and not the courts – to provide the remedy so that the laws can be open to scrutiny,” she continued.
The ruling stems from a claim brought by gay rights activist Maurice Tomlinson against the Government challenging sections 76, 77 and 79 of the Offences Against the Person Act (OAPA), which criminalises sexual relations between men.
However, before the substantive claim could be heard, Justices Lorna Shelly-Williams, David Batts and Pettigrew-Collins had to determine whether the court has the jurisdiction to enquire into the constitutionality of the OAPA provisions in light of the savings law clause in the Charter.
Among other things, Tomlinson had contended that amendments to the Sexual Offences Act in 2009 undermined the effect of the savings law. He argued that criminalising homosexuality amounts to a direct and blatant denial of equality before the law for him and other gay men.
The Attorney General’s Chambers countered that Tomlinson was using a “strained interpretation” of legislative changes to argue for the colonial-era buggery law to be struck down as unconstitutional.
In delivering the oral judgment, Justice Batts said the constitutionality of three sections of OAPA “cannot be enquired into” because it was “clear” from the 2011 amendments to the Constitution that “Parliament intended to protect laws related to sexual offences from review for unconstitutionality”.
Justice Pettigrew-Collins further said, “Whether it is fully appreciated or not, the present savings law clause was specifically and clearly deliberately designed to exclude from judicial examination the question of whether there has been any breach of certain rights even in circumstances that would otherwise be obvious instances of breach, and must, therefore be appreciated for what it is: a limit on certain guaranteed rights, in the present instance, as far as homosexuals are concerned.
“It is, of course, not the only limiting provision, but perhaps the only one that may, from a secular standpoint, be regarded by many as having no proper and justifiable rationale,” she added.
Sections 13(12) and 18 of the Jamaican Charter of Rights and Freedoms immunise from constitutional challenge existing laws that criminalise sexual relations between men and preclude legal recognition of homosexual unions, respectively. They are referred to in the Commonwealth Caribbean as ‘savings law’ clauses.
In Jamaica’s case, existing laws are laws which were in existence before the charter came into force. The OAPA was brought into force in 1864.
Despite the unanimous ruling, the judges did not hide their concerns about the implications for the rights of citizens and even questioned the motives of the Government in maintaining the buggery law.
“It may be thought that, in the 21st century, the State and its agents ought not to involve itself with sexual activities behind closed doors between consenting adults. This is because it is not easy to discern any public interest served, by the involvement of the State, in matters of so personal a nature,” Justice Batts wrote.
He added: “That interest was easier to contemplate at a time when the Church and State were virtually indistinguishable, which is, of course, no longer the case. By opposing this claim, the State and all interested parties to this litigation seek to enable that sort of intervention.”
However, the judge said, “questions whether such intervention is right or wrong or, whether sexual acts between consenting adults of the same sex is good or bad are not before us today”.
Reacting to the judgment, Tomlinson and his lawyer Ian Wilkinson, KC, slammed the court for not being “bold”.
“The decision is disappointing and it is sad that the court wouldn’t do, one, what it is constitutionality required to do, which is to protect the rights of minority and, two, take a very cowardly approach to keep this law, which is archaic, backward and is anachronistic. It is out of step with the rest of the world and it shows Jamaica in the worst possible light,” Tomlinson said.
Wilkinson, for his part, said, “From our perspective, we thought that there was a legal basis for the court to rule in his favour, certainly not a frivolous claim. So we are very disappointed in our court’s approach to the matter and its decision.”
Several church groups had joined the case as interested parties, making clear their opposition to any challenge to the buggery law as inimical to Christian beliefs.
Reverend Dr Alvin Bailey hailed Friday’s decision as a “landmark”.
“We have witnessed a ruling that represents a stance against the kind of imposing behaviours that disregard the kind of morality and family that we seek to embrace in Jamaica, and we are glad that the court upheld the savings law clause that would want to protect against those foreign practices and policies that are not welcome in Jamaica,” Bailey said.
