Tomlinson prepared to escalate gay rights battle to Privy Council

Gay rights activist Maurice Tomlinson has changed his mind about ending his legal fight with the State over the constitutionality of the buggery law and is now determined to take this fight all the way to the country’s highest court, the Privy Council.

Tomlinson, earlier this month, filed a motion to appeal the Supreme Court’s ruling in October, which, essentially, had put to rest his challenge of the buggery law in the high court.

The Jamaica-born Canadian lawyer and nurse, who has been advocating for years for the country to repeal the buggery laws, wants the appellate court to find that the high 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.

He also wants the matter to be remitted to the Supreme Court for a determination regarding possible redress for contravention of his fundamental rights and freedoms.

The Supreme Court has ruled that the constitutionality of three sections of the Offences Against the Person Act “cannot be enquired into” because of the Constitution’s saving clause laws.

Justice David Batts, in delivering the ruling, said the constitutional amendments in 2011 “are clear” that the “Parliament intended to protect laws related to sexual offences from review for unconstitutionality”.

The judges concluded that Jamaica’s buggery laws are immune from challenge in the courts.

“Whether it is fully appreciated or not, the present Savings Law clause was specifically and, clearly, deliberately designed to exclude from judicial examination the question of whether there has been any breach of certain rights even in circumstances that would otherwise be obvious instances of breach, and must, therefore, be appreciated for what it is: a limit on certain guaranteed rights, in the present instance, as far as homosexuals are concerned,” Justice Andrea Pettigrew-Collins said in the judgment.

“It is, of course, not the only limiting provision, but perhaps the only one that may, from a secular standpoint, be regarded by many as having no proper and justifiable rationale,” she added.

PARLIAMENT TO PROVIDE REMEDY

According to the Supreme Court, it is up to Parliament and not the court to provide a remedy to allow for scrutiny of the law.

At the same time, the high court, while asserting that the State is being driven by an “agenda” to preserve the country’s buggery laws, said it was worrying that Savings Law clauses are being used to prevent scrutiny of laws violating citizens’ rights.

But among Tomlinson’s grounds of appeal are that the court erred in applying a narrow construction to the 2011 Savings Law clause; that the court erred in finding that the Lambert Watson decisions did not apply to the Savings Laws clause and that the court erred in finding that changes effected by the SOA to the consequences of penalties prescribed under the impugned provisions do not change those laws.

A three-judge panel, including Justice Pettigrew Collins and Lorna Shelly-Williams, had been asked 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.

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 that were in existence before the charter came into force. The OAPA was brought into force in 1864.

The judges were asked to rule on a preliminary point before the substantive claim brought by Tomlinson was heard.

Among other things, Tomlinson had contended that amendments to the Sexual Offences Act in 2009 undermined the effect of the Savings Law. He argued that criminalising homosexuality amounts to a direct and blatant denial of equality before the law for him and other gay men.

Following the October ruling, Tomlinson indicated that he was gracefully walking away from any further legal challenge. Among his reasons cited was the finances.

However, when contacted, he said that he had had a change of heart after members of the LGBTQ+ ( lesbian, gay, bisexual, transgender, queer or questioning) community reached out to him expressing fears that the status quo would not be changed anytime soon.

“I realise that if I don’t do anything about this it will be another generation or two before anything happens because our Parliament doesn’t have the courage to address these human rights violations because of the politics and the power of the churches,” Tomlinson said.

“I realise that unless I did something, nothing will happen. There’s no likelihood that anybody will bring this matter before the court because of how hostile the court has been towards this issue, so we have to try and resolve it through the Privy Council,” he added.