Court dismisses challenge of Jamaica's buggery law

The Supreme Court has ruled that the constitutionality of three sections of the Offences Against the Person Act "cannot be enquired into" because of the Constitution's savings law clause.

The ruling dismisses gay rights activist Maurice Tomlinson's challenge of the buggery law.

Today's unanimous ruling was delivered by Justice David Batts, on behalf of a three-member panel of judges.

He said constitutional amendments in 2011 "are clear" that the "Parliament intended to protect laws related to sexual offences from review for unconstitutionality".

READ: Gov't chastises Tomlinson for 'strained interpretation' in buggery law case

The three judges had been asked 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.

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