Supreme Court judges urged to be ‘fearless’

WHILE EMPHASISING that politicians are afraid of making difficult decisions, counsel for gay rights activist Maurice Tomlinson yesterday urged the Supreme Court judges to be fearless and find that the Savings Law clause does not shield the buggery laws from constitutional challenge.

The judges, Justices David Batts, Lorna Shelly Williams and Andrea Pettigrew Collins, are to rule on or before October 6.

King’s Counsel’s Ian Wilkinson, in his submission yesterday in the Full Court, said: “The defendant would have you believe that to rule in favour of the defendant you would be usurping Parliament’s power. That is not so, you are independent, you can’t be shackled by Parliament if you as a court see that you have to take a particular course once the law allows it.

“This court has in our respectful submission, a duty to decide this matter on the law,” he said while agreeing with Justice Batts that the case is not about emotions or sentiments.

“You cannot be cowards,” Wilkinson added, while at the same time acknowledging that the judging panel was not a “cowardly bench”.

The senior lawyer was making submissions before the panel who is 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.

SAVINGS LAW CLAUSES

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.

The claimant, an openly gay man, who is legally married in Canada and is desirous of relocating to Jamaica with his partner, filed a lawsuit in December 2015, seeking to have the laws nullified in relation to all cases of adult consensual sex which attracts convictions and prison terms.

He is contending that criminalising homosexuality amounts to a direct and blatant denial of equality before the law for him and other gay men.

The hearing for that lawsuit was, however, placed on hold by the Court of Appeal, who ordered the preliminary trial.

The Attorney General is a defendant in the matter while the churches, Hear the Children’s Cry, Jamaica Coalition for a Healthy Society and Lawyers Christian Fellowship Limited are involved as interested parties.

Wilkinson, during his submission yesterday, argued that the impugned provisions of the OAPA are null and void and of no effect as they contravened the claimant’s constitutional rights, particularly his rights under the 2011 Charter, and are not “saved” by the Savings (Law) clause in section 13 (12) of the said Charter.

NEW CONSEQUENCES

He maintained that although the wording of the impugned provisions of the OAPA has not been changed by deletion or substitution, they have been altered by addition of further, or new consequences arising from conviction for those offences.

Wilkinson argued that the enactment of the SOA and its regulations with respect to the introduction of additional consequences for persons convicted for buggery and gross indecency to report and register with Sex Offender Registry has modified or changed the OAPA.

Lisa White, who is representing the Attorney General has, however, countered that the claims that the provision of SOA and its regulation has amended the OAPA are baseless.

She maintained that it is a “strained interpretation” to posit that there has been an indirect modification of the impugned section by the promulgation of the SOA and its regulation.

Attorney Wendel Wilkins, who appeared for the LCF Limited, agreed with the defendant’s submission that the SOA and its regulation did not affect the impugned sections and that neither did the addition of the punitory measure.

The churches and Hear the Children’s Cry had adopted the defendant’s arguments.

Meanwhile, lawyer for the Coalition, Ransford Braham, KC, in his submission urged the court to have a strict look at the Savings Law clause.

He further submitted that the Savings Laws clause remains untouched and is safe when the law is narrowly applied.

Danielle Archer represented the churches while King’s Counsel Caroline Hay appeared for Hear the Children’s Cry.

tanesha.mundle@gleanerjm.com