Privy Council can’t challenge buggery law
Published:Saturday | December 23, 2023 | 12:06 AM
THE EDITOR, Madam:
I am writing with reference to the article, ‘Tomlinson prepared to escalate gay rights battle to Privy Council,’ published on December 21. I realised after reading the article that this is just a proposal, but I have some valuable information to share.
‘Savings clauses’ feature in the constitutions of all Commonwealth Caribbean countries. They are immune from constitutional challenges.
This means the Lords of the Judicial Committee of the Privy Council (JCPC) cannot challenge the constitutionality of Jamaica’s buggery law, which is a savings clause.
Also, the Lords of JCPC cannot challenge ‘mandatory sentence’ for capital murder, which is also a savings clause.
It is mentioned in the UK JCPC judgment for Pratt et al vs the Attorney-General of Jamaica, that the Parliament is responsible for removing savings clauses from their constitutions.
According to the Constitution of Jamaica, savings clause can be removed by Parliament or with a referendum. Buggery law is a savings clause. Savings clauses are preserved. They are British common laws that were in force pre-Independence.
I believe the current Jamaica’s buggery law was enacted in 1874 when the nation was a British colonial possession, with roots reaching back to medieval English law.
On July 5, 2022, the Antigua and Barbuda High Court struck down ‘buggery’ and ‘indecency’ laws as unconstitutional.
The court explained that the original buggery law in Antigua and Barbuda was enacted in 1873 when the nation was a British colonial possession, with roots reaching back into medieval English law.
According to the court, the original 1873 law states that “whosoever is convicted of the abominable crime of buggery, committed either with mankind or with animal” is liable for imprisonment of up to 10 years, with the possibility of hard labour and solitary confinement.
Antigua & Barbuda’s Sexual Offence Act 1995 Sections 12 and 15 are concerning buggery. Section 12 defined ‘buggery’ as an anal sex either between two males or between a male and a female, whose commission can lead to a sentence of 15 years if done by two adults.
Section 15 provided an exemption from the crime of acts of “serious indecency”, meaning an “act, other than sexual intercourse — involving use of the genital organ for the purpose of arousing or gratifying sexual desire “ done by a husband and wife, or between consenting male and female partners over the age of 16.”
On August 29, 2022, the St Kitts & Nevis High Court struck down discriminatory colonial-era buggery law as unconstitutional. Consensual sexual activity between men was prohibited under Section 55 of the Offences Against the Person Act 1986, which criminalised acts of buggery, referring to it as “the abominable crime”. The law was imposed on the Caribbean country by the British during the colonial period.
Finally, Barbados’ High Court ruled that the criminalisation of gay sex is unconstitutional.
CARGILL KELLY