Sun | Feb 16, 2020

Editorial | Belize further highlights illogic of buggery law

Published:Monday | January 20, 2020 | 12:22 AM

We don’t know where Maurice Tomlinson’s challenge to Jamaica’s sodomy law now stands in the Supreme Court’s docket. However, he, other gay rights activists, and all reasonable subscribers to the ideals of human rights, among whom this newspaper counts itself, ought to welcome the recent ruling in a similar matter by Belize’s Appeal Court, which should enhance the possibility of success by Mr Tomlinson.

For, while rulings of Belize’s courts are not binding in this jurisdiction, they are, as the jurists say, persuasive. And in any event, the logic of Caleb Orozco in the Belizean cases, now upheld by two tiers of that country’s court system, is profoundly unimpeachable and likely to be sustained by the Caribbean Court of Justice (CCJ), Belize’s final court, if the government decides on a further appeal.

There are significant parallels between the Jamaican and Belizean cases, as well as one in Trinidad and Tobago that is now at appeal, which the Trinidadian government is hoping will reinstate the buggery law.

Caleb Orozco, like Maurice Tomlinson, is a gay manwho chafed against the threat posed by Section 53 of Belize’s criminal code, a holdover from colonial times that decreed jail sentences of 10 years for anyone who engaged in “carnal intercourse against the order of nature with any person”. Section 76 of Jamaica’s Offences Against the Person Act calls the same offence the “abominable crime of buggery”, for which persons can be imprisoned for up to seven years.

Yet Jamaica and Belize’s constitutions, like that of Trinidad and Tobago’s, and other Caribbean countries, in their various formulations, guarantee citizens the right to personal privacy, as well as the privacy of their home and family life, while obligating the State, in the language of the Jamaican document, “to promote universal respect for, and observance of, human rights and freedoms”.

Even as they advanced their constitutions, Caribbean governments clung to the old buggery laws that give supposedly modern states the whiff of scopophilic prurience, masked by the smoke of Old Testament fire-and-brimstone morality. These anomalous positions were sustained because of a critical mass, loud and agitated enough to cow the majority into an assumption of its own belief in the rectitude of infringing the rights of the minority.

SIMILAR LOGIC IN JAMAICA

Fundamental principles, such as those upon which human rights and democracy are founded, aren’t, in the long term, easily contained. In that context, it wasn’t surprising that the Belizean courts ruled that Section 53 of the penal code violated the constitutional right to dignity, privacy, equality, and freedom from gender discrimination.

Or as Justice Davindra Rampersad held in the Jason Jones case in Trinidad and Tobago, not only did the criminalisation of anal sex between consenting adults impinge on the right to the enjoyment of expressly guaranteed rights and freedoms, but it constituted a denial of human dignity of a minority that was akin to perpetuating the kind of thinking that made Hitler’s Holocaust and South Africa’s apartheid possible.

We expect a similar logic to be asserted by the Jamaican courts, which may then argue that it is nonetheless constrained by the saving clause in the island’s Constitution that retains some colonial laws that on the face of it, are unconstitutional.

In that event, we would suggest that the Jamaican justices apply the principle asserted by the CCJ: “A restrictive interpretation and/or application of the savings clause is always warranted. There is a simple reason for this. It is the duty of the court to adopt a generous interpretation of the provisions related to fundamental rights. As far as possible, full effect should be given to the guarantees promised to the citizen in those rights.”