Ball in Parliament’s court

THE Constitutional Court on Friday pointed out that the savings law clause in Jamaica’s Charter of Rights does in fact bar the courts from enquiring into whether three provisions under sex offence laws here breach the constitutional rights of homosexuals. As such the court said that the matter is “for Parliament and not the courts to provide the remedy so that the laws can be opened to scrutiny”.

In the judgment, which is another twist in the long-running constitutional challenge to Jamaica’s anti-sodomy law by gay rights activist Maurice Tomlinson, Supreme Court judge, Justice David Batts, who was part of the three-member panel, said that while “well aware that in our duty to judicially protect all rights guaranteed by the constitution, a broad and purposive approach to its interpretation is required… judges do not make policy”.

“We should not, by ignoring the clear words used by the people’s elected representatives, seek to rewrite, remake or refashion the constitution or legislation. The policy of the executive arm is given effect to by the legislature. It is the duty of this court to give effect to the law so passed once its meaning has been ascertained. We must do so no matter how distasteful we may find such a law. This applies even more so to the interpretation and application of the highest law being, of course, the Constitution of Jamaica. It is not for this court to give a strained or unusual interpretation to achieve an end desired by us,” Justice Batts declared.

Sections 13(12) and 18 of the Jamaican Charter of Rights and Freedoms, which in 2011 repealed and replaced the Bill of Rights chapter of the Jamaican Constitution, immunise from constitutional challenge existing laws that criminalise sexual relations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.

Tomlinson, a married homosexual who lives in Canada but frequents Jamaica, in 2015 filed a claim in the Supreme Court challenging the constitutionality of sections 76, 77 and 79 of the 1864 Offences Against the Person Act (OAPA), contending that criminalising homosexuality amounts to breaches of the rights guaranteed to him by the constitution while further alienating and driving members of the LGBTQ community underground. He is being opposed by the Government and 10 church groups who have argued that the court has no jurisdiction to embark on that enquiry because of the savings law clause.

The matter had, however, been satellited to the Appeal Court after a ruling by Supreme Court Judge Justice Tricia Hutchinson in 2022 when she said there was no need for a separate trial to determine whether the court had the jurisdiction to enquire into the constitutionality of the sections, given the savings law clause.

The Appeal Court, however, in March this year said it had unanimously determined that the judge had erred in her finding and was “plainly wrong”, and ordered that her ruling in this respect should be set aside. The court also ordered that the substantive claim by Tomlinson be stayed, pending a determination of the preliminary issue by the Constitutional Court.

Justice Batts on Friday said, “In the final analysis, the words enacted in section 13(12) of the Charter of Fundamental Rights and Freedoms (Constitutional Amendment) Act, 2011 are clear. Parliament intended to protect laws related to sexual offences from review for unconstitutionality. This was done in the same year changes were made to the pre-existing Offences Against the Person Act. There is consequently no warrant for a suggestion that the amendments either change the nature of the law or prevent the savings law clause having effect. I would, for all the reasons stated, uphold the preliminary point in favour of the defendants and dismiss the claim.”

Supreme Court judge, Justice Pettigrew Collins in her arguments 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.”

In response to arguments by Tomlinson’s legal team that the challenged provisions in the Act violate international law and/or international treaties, Justice Pettigrew Collins said, “The short answer is that the role of the judge is to interpret and apply law; if the law, as laid down in a statute or the constitution, is incongruous with international law and obligations, the matter must be addressed by Parliament.”

As to their further arguments that Parliament had a political agenda for retaining the provisions, she said, “I conclude by making the observation that 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, but it is, sadly, for Parliament and not the courts to provide the remedy so that the laws can be open to scrutiny.”

Tomlinson is seeking to have that court declare that sections 76 and 77 of the OAPA do not apply to consensual sexual activities between any person age 16 or older, including persons of the same sex. He is also seeking a similar declaration in respect of the treatment of those acts under the 2009 Sexual Offences Act as well as the requirements for registration of such sex offenders and the reporting obligations under that statute.