Editorial | Judicial courage and the buggery law

With the Court of Appeal having earlier this month ruled against the public defender's attempt to join, as an interested party, Maurice Tomlinson's constitutional challenge of Jamaica's buggery law, we hope the underlying matter will now move ahead at a faster trot than the snail's pace it has travelled since being lodged three years ago.

Unless, that is, Arlene Harrison Henry, the public defender, seeks to overturn, at the Privy Council, the local court's finding that the law that the Public Defender Act precludes her entry into the matter. There may well be important points of law still to be argued, but we would prefer Mr Tomlinson's case proceed quickly to a final resolution. This newspaper is far more sanguine about the possibility for its success in Jamaica's courts than before.

The law, which criminalises anal intercourse, whether between consenting males or heterosexuals, is one of those colonial holdovers - part of the 1864 Offences Against the Person Act that also makes abortion illegal, no matter the circumstances of the pregnancy, or its consequences to the woman. With regard to anal sex, persons convicted of the offence can be jailed for up to 10 years at hard labour.

But as this newspaper has argued - and the courts in Belize and Trinidad and Tobago have agreed over the last two years - this remnant of a time past represents an assault on the rights guaranteed in the constitutions of all Commonwealth Caribbean countries, including Jamaica's. For it sets the State up as voyeur, with a prurient interest in what takes place in people's bedrooms, thus infringing their right to privacy and freedom of association, and to be free from discrimination.

Unconstitutional Buggery Laws

Indeed, it was largely this construct that caused courts, first in Belize in 2017, and in Trinidad and Tobago in April, to rule their buggery laws unconstitutional.

The fundamentalist guardians at the Old Testament, fire-and-brimstone ramparts of a morality, which they hope to douse on everyone, won't easily retreat to logic, tolerance, and the value of difference. We expect that they will rally around, and seek reinforcement in the saving clause in Jamaica's Constitution Order that causes all laws in place prior to Independence, to continue to be in force afterwards, unless amended or appealed by Parliament.

In which event, encouragement is to be found in the wisdom and logic of Adrian Saunders, the president of the Caribbean Court of Appeal. In a recent case from Guyana, in which a group of men were convicted for cross-dressing, based on a 'saved' colonial law, the Caribbean Court of Justice (CCJ), in a ruling whose lead opinion was written by Justice Saunders, held the law to be unconstitutional.

Interpretation

He argued: "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."

Justice Saunders also noted the positions of many jurists that "courts should first apply the modification clause to the relevant pre-Independence law before attempting to apply the savings law clause".

Jamaica's is not a member of the CCJ's civil and criminal jurisdiction, so its rulings are not binding on our courts. They are nonetheless persuasive. It will, nonetheless, be significant how Jamaica's court interprets that section on the savings clause that says that laws subject to its provisions should be construed "with such adaptations and modifications as may be necessary to bring them into conformity with the provisions of this Order" - whether it applies to all laws, or only those passed before independence, but were not yet in force.

In a speech in Kingston this week, Justice Saunders highlighted the need for judicial courage, including "in those instances when we are called upon to engage constitutional or human rights adjudication; when we are called upon to fulfil the promises laid in the Charter (of Rights) claims ... and to make declarations that may be deeply unpopular with governments or influential interest groups".

We hear him loudly.