Gov't chastises Tomlinson for 'strained interpretation' in buggery law case
Published:Tuesday | June 27, 2023 | 1:22 AMTanesha Mundle/Staff Reporter
GAY RIGHTS activist Maurice Tomlinson is using a “strained interpretation” of legislative changes to argue for Jamaica’s colonial-era buggery law to be struck down as unconstitutional, government lawyers are claiming.
Lisa White, who is representing the Attorney General, made the assertion yesterday as a preliminary trial on Tomlinson’s 2015 lawsuit started in the Supreme Court where the churches, Hear the Children’s Cry, Jamaica Coalition for a Healthy Society and Lawyers Christian Fellowship Limited are appearing as interested parties.
Three judges are to determine whether the court has the jurisdiction to enquire into the constitutionality of sections 76, 77 and 79 of the Offences Against the Person Act (OAPA), in light of the Savings Law clause in the Charter of Fundamental Rights and Freedoms (Constitutional Amendment) Act.
Sections 13(12) and 18 of the charter 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.
The outcome of this trial will determine whether the substantive claim will proceed.
In that claim, Tomlinson is seeking to have the laws nullified in relation to all cases of adult consensual sex which attracts convictions and prison terms.
He is also claiming, among other things, that criminalising homosexuality amounts to a direct and blatant denial of equality before the law for him and other gay men.
But White, in opening her submission yesterday, argued that the answers provided by the Government in relation to the constitutionality of the savings clause “will dispose of the claim in its entirety”.
Tomlinson’s argument, she summarises, is that the 2009 Sexual Offences Act (SOA) and its regulation amended the OAPA, which in term altered sections of the act, resulting in the removal from the Savings Law clause the section in question.
But she said, “Our submission is that is not correct in law that there has been any such amendment as argued by the claimant”.
“On the face of the legislation, it is clear, that what the claimant claims as an addition, it is a strained interpretation to posit that there has been the type of amendment that would remove the coverage … of the Savings Law clause,” White added.
The last amendments done to the sections of the OAPA were in 1969, years before the Charter came into existence. White further posited that although there were amendments to certain sections of the OAPA it did not affect the section in question and neither does the existence of the Sexual Offenders Registry.
She also submitted that although there were amendments, it did not change the legal meaning and as such the coverage of the Saving Laws remains.
King Counsel Ian Wilkinson, however, argued the impugned provisions of the OAPA breach the Charter in a number of respects and restrict a number of his client’s rights and freedom by the OAPA as a result of the changes to the SOA and its regulation.
He submitted that the Savings Law clause was for maintaining good governance in the colonial era and was not intended to preserve unfair laws or those which could not stand changes of time and in societal norms and human behaviour.
“It is anachronistic in a lot of ways and we are not saying the Savings Law clause must be thrown out, it remains useful up to this day but it must be narrowly applied,” he said.
On the contrary, he said where an individual's Constitution right is been violated it should be given generous application.
Wilkinson will continue his submission today.
Daniel Archer is representing the churches, King's Counsel Caroline Hay appears for Hear the Children’s Cry, King's Counsel Ransford Braham for the Coalition and Wendell Wilkins and Jamila Thomas for the Lawyers Christian Fellowship Limited.