CCJ could overturn Ja’s Constitution to support LGBTQI community, group warns

WESTERN BUREAU:

The Association of Christian Communicators and Media (ACCM) says that calls for the Caribbean Court of Justice (CCJ) to become Jamaica’s final court of appeal should be reconsidered, due to concerns over that court’s potential to make rulings for the LGBTQI community that could violate Jamaica’s Constitution.

The ACCM’s leadership made its stance on the issue clear during an online forum held on the Zoom platform over the weekend, under the theme ‘Man Plus Woman: God’s Perfect Plan’.

During one of several keynote presentations in the forum, ACCM Second Vice-President Byron Buckley cited rulings made by the CCJ regarding laws in Trinidad and Tobago, as well as other Caribbean countries, as cause for concern about what could be done to Jamaica’s current buggery law.

“There are concerns that the CCJ has been willing to rule against laws that have been protected under the savings law clause. The CCJ president himself, Justice Adrian Saunders, lamented in a speech in Trinidad and Tobago last year that ‘the special savings clause still catches such outdated offences as consensual anal sex, whether homosexual or heterosexual.’ In other words, his belief is that the savings clause should not still be there, and this is in the particular case of Trinidad, but it is also the case of Jamaica and some other Caribbean countries,” said Buckley.

“The CCJ is of the view that, in its own opinion, outdated laws and offences must reflect or conform to modern values and rights. The court has been willing to override laws or offences related to transgender people, as in the case of Guyana, and homosexuality, as in the case of Barbados,” Buckley added. “Imagine what would happen in Jamaica if the CCJ was our final appellate court and made that ruling. Because in the Jamaican situation, in the Offence Against the Person Act, it is an offence at this time to have same-sex relations, and so on.”

ASSURANCES

In 2018, the CCJ ruled that Guyana’s law against cross-dressing was unconstitutional, following the 2009 arrest of four persons who identified as transgender. It ordered that the appellants in that case be compensated and the law struck from Guyana’s books.

Regarding Barbados, in February 2022 the CCJ overturned the dismissal of a 2015 case in which a man reportedly committed sexual violence against another man. The dismissal was done on the grounds that the offender should have been charged with buggery instead of rape. Barbados would later have its laws which criminalised gay sex struck down in December that year.

Jamaica’s Supreme Court ruled in October 2023 that the country’s buggery laws are immune from being challenged in the courts. Sections 76, 77, and 79 of Jamaica’s Offences Against the Person Act criminalise sexual relations between men.

ACCM President Jenni Campbell has warned that the CCJ should only be considered for Jamaica’s final court of appeal once assurances are in place that the nation’s laws will not be compromised in doing so.

“While we may want our own final court of appeal, at this point in time, until we can be sure that the laws of the land will be upheld in the court, we have to stay where we are. We can’t force anybody to make that choice, but our responsibility is to provide this information so that our people will know, so that we don’t wake up one day and a referendum is called, and we vote, and then we’re frightened at the result,” said Campbell.

Notably, in June 2023, Minister of Legal and Constitutional Affairs Marlene Malahoo Forte advised that the Government did not intend to disturb any savings law clauses in Jamaica’s Constitution or to repeal pre-existing laws that would go against fundamental beliefs held by the Church. Those clauses include provisions in the Charter of Fundamental Rights and Freedoms that protect the buggery law and the law prohibiting abortion from being challenged under the Charter of Rights.