Tenesha Myrie | A bunch of cowards

On December 11, 2018, the joint select committee reviewing the Sexual Offences Act and related acts published its long-awaited report. Some gains were made in the recommendations largely because of the persistent advocacy of civil-society groups.

These include the full protection of women from marital rape; strengthened protection for vulnerable victims, such as children under 12 years, persons with a physical or mental disability, and persons over 70 years; a close-in-age exception for minors who willingly engage in sexual intercourse with each other; modernising the language used to refer to persons with disabilities; registration of persons convicted abroad for sexual offences on the Sex Offender Registry; and the creation of the offence of stalking.

Some partial gains include increased protection from domestic violence and the restriction of the offence of 'living on earnings of prostitution' to apply only to 'prostitutes', pimps, and human traffickers.

These gains, however, are overshadowed by the curious approach of the committee to 'savings law clauses' in the Constitution. The committee reasoned that it could not recommend strengthening protection for all victims of sexual violence - in particular, victims of incest, persons who are forcefully anally penetrated with a penis, women and girls who are victims of rape and who become pregnant as a result and want to abort the pregnancy, because changes to the relevant laws would cause these laws to lose the protection of the savings law clause in the Constitution.

The consequence of this is that these laws would be open to challenge in the courts. The committee further expressed that a referendum might be required to determine whether some of these laws should be changed.

The current savings law clause in Section 13(12) of Jamaica's Constitution is a modified version of one of the clauses that were present in Jamaica's 1962 Independence Constitution. The 1962 savings law clauses prevented the courts from declaring that pre-Independence laws and punishments were unconstitutional where these laws and punishments violated constitutional rights.

Betrayal of the people

In what could be considered a betrayal of the people of Jamaica, the Parliament, in drafting the 2011 Charter of Rights, rejected the recommendation of the Constitutional Commission that these savings law clauses be removed because they undermine the pre-eminence of the Constitution as the supreme law. Rather, the Parliament accepted the late submission of conservative religious groups to craft a modified savings law clause that selectively applies to laws relating to sexual offences, offences regarding the life of the unborn, and obscene publications that are in force up to 2011.

The consequence of this is that laws relating to sexual offences, abortion, and obscene publications are elevated above ordinary laws that are required to conform to the provisions of the Constitution. Further, Jamaica is the only Commonwealth Caribbean country that has sought to extend the application of savings law clauses beyond the date of Independence, and that has done so in a way which deliberately targets specific groups.

Savings law clauses are not a good thing. In the seminal 2018 cases of Nervais v the Queen and McEwan v The Attorney General, the Caribbean Court of Justice ( CCJ) explained that savings law clauses have deprived Caribbean persons of their fundamental freedoms and rights; they undermine the hallowed concept of constitutional supremacy and are at odds with the court's constitutionally given power of judicial review.

In a swift departure from the approach of the United Kingdom-based Privy Council, the CCJ determined that notwithstanding the presence of savings law clauses, where an existing law conflicts with the rights provisions of the Constitution, the Constitution must prevail - a premium must be placed on affording citizens the enjoyment of their fundamental rights, unless there is some overriding public interest.

The committee's reluctance to recommend equal protection for all victims of violence because of its deference to the savings law clause is cowardly. The savings law clause does not inhibit Parliament from amending the relevant laws.

The committee's suggestion for certain matters concerned with the protection of human rights to be put to a referendum is a dereliction of its duty as representatives of the people. It flies in the face of Parliament's constitutional mandate to make laws for the 'peace, order and good government of Jamaica'.

It is a dangerous approach, as historical movements have taught us that the fight for recognition of each person's humanity and dignity should never be left to the 'tyranny of the majority'. Going forward, the Parliament of Jamaica must ensure that any and all changes to the sexual offences laws and related laws are done in a way that provides equal protection for all persons in Jamaica.

 - Tenesha Myrie is an attorney-at-law and lecturer in the Faculty of Law, UWI, Mona campus. Email feedback to columns@gleanerjm.com and tenesha.myrie@oxon.org, or tweet @teneshamyrie.