Judicial solution for the buggery law

Recently on Twitter, one of my followers, in despair and frustration at his malfunctioning Internet connection, wrote: "My Internet moving like a b-yman [gay]." This offhand comment equated homosexuality to an unsettling distortion in the natural order of things. It is a deeply embedded sentiment which is shared by a majority of the Jamaican society.

Not only is it the favourite topic of dancehall artistes who exhort their listeners to 'shoot di b-ybwoy, shot dem dead', but former Prime Minister Bruce Golding, when asked on BBC's 'Hardtalk' if he would permit homosexuals to serve in his Government, emphatically declared, "Not in my Cabinet!"

It is not surprising, therefore, that silence is the only appropriate and safest way to wear your homosexuality in Jamaica. But the silence 'about who you are' and, in some cases, the resultant guilt at 'being who you are' leads to what I will call the Dimmesdale malady. For the real tragedy in 'The Scarlet Letter' was not Hester being branded with the ignominious scarlet A, but Dimmesdale's heart-wrenching struggle at playing the hypocrite.

interpreting the law

But do they have any choice but to remain silent and disappear quietly into the night? Is it possible for homosexuals to attain, if not social, at least legal, recognition for their lifestyle? The answer to the latter question - and consequently the former - lies in judicial interpretation of sections 13(12) and 18 of the Jamaican Charter of Rights and Freedoms, which in 2011 repealed and replaced the Bill of Rights chapter of the Jamaican Constitution.

The Jamaican State's complicity in perpetuating homophobia goes much deeper than the former PM's statement. The great bastions of state bigotry are sections 13(12) and 18 of the charter. These two sections immunise from constitutional challenge existing laws that (1) criminalise sexual relations between men and (2) 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. For other Commonwealth Caribbean countries, existing laws are those which existed before the constitution of the particular country came into being.

It would appear that the presence of the savings law clause in the charter is intended to prevent local courts from following in the footsteps of their counterparts in other parts of the world. For example, national courts in both the United States and South Africa have made great strides in protecting the human rights of homosexuals. The US Supreme Court, in 2003, declared a Texas sodomy law a violation of the individual's fundamental right to liberty and privacy.

More recently, the South African Constitutional Court, in 2006, found that excluding homosexual couples from the definition of marriage was a violation of the South African Constitution.

It is ironic that the charter which was meant to expand the scope of fundamental rights for Jamaican citizens has also been used to deny homosexuals legal protection for their lifestyle choices.

It is, however, my contention that the findings of the Privy Council (PC) in Roodal v the State [2003] UKPC 78, and the dissenting judgment in Boyce and Joseph v R (2004) WIR 37, can be used to circumvent the debilitating effect of the savings law clause on a judicial review of Jamaica's buggery law.

Challenging institution

Savings law clauses, as far as they preclude judicial review of existing laws that are inconsistent with the Constitution, challenge the principle of constitutional supremacy and rob the individual from enjoying the full benefits of the fundamental rights provisions. Thus, they have been a source of frustration for courts wishing to give a generous interpretation to the fundamental rights provisions of Commonwealth Caribbean constitutions.

Nonetheless, the judiciary - more specifically, the Privy Council - has employed various methods of constitutional interpretation to avoid the limitations presented by savings law clauses. The most ingenious and, perhaps, controversial method was that employed by the PC in Roodal. In Roodal, the PC held that the savings law clause in the 1972 Trinidad and Tobago Constitution only applies where an existing law could not be brought into conformity with the Constitution through the use of the Constitution's modification clause.

From this starting point, the PC went on to find that Section 4 of the Trinidad and Tobago Offences Against the Person Act (TTOAPA), which authorised the mandatory death penalty, could be brought into conformity with the Constitution by making the death penalty discretionary. Thus, the savings law clause could not serve to hide Section 4 of the TTOAPA from judicial scrutiny.

Additionally, the dissenters in Boyce, when answering a similar question about the mandatory death penalty in Barbados, found that the wording of the savings law clause - and in particular the phrase 'nothing shall be held inconsistent with' - allowed the courts to exercise the power to modify the existing law. But only to the extent that the modification did not emasculate, void or render nugatory the existing law.

Sanitising the buggery law

Currently, Section 76 of the Jamaican Offences Against the Person Act criminalises acts of buggery committed in both public and private, regardless of whether the participants are consenting adults. Courts in other jurisdictions and international human rights tribunal have found statutes of similar ilk to be in contravention of the right to privacy.

For example, the European Court of Human Rights in Dudgeon v the United Kingdom - 7525/76 [1981] ECHR 5 held that an Irish statute similar to Section 76 was in violation of Article 8 of the European Convention on Human Rights, which protects the right to private life. In light of this jurisprudence, there can be no doubt that Section 76 is a violation of the right to privacy that is protected under Section 13(2) (j) (ii) of the Charter of Rights.

Notwithstanding, Section 13(12) of the charter prevents the court from declaring Section 76 as unconstitutional. The finding in Roodal and the dissenting judgment in Boyce help us to overcome this formidable legal obstacle. How is it to be done?

The modification clause in the Jamaican Constitution should be used to narrow the ambit of Section 76 to cover only acts of buggery committed in public. By restricting the illegality to the public sphere, Section 76 is neither emasculated nor rendered void. It is instead 'constitutionalised'. The Constitution allows restriction on rights to protect public morals, but only to the extent that the limitation achieves a legitimate objective and does not excessively infringe the individual's rights.

As such, buggery, which is considered immoral, can be criminalised in order to protect the morality of the majority. Nonetheless, the suggested limitation is not excessive - as is the case with the present Section 76 - since homosexuals are allowed to practise their sexual activities in the privacy of their homes.

Advantages of Sanitisation

This approach has three distinct advantages. First, the views of the majority of Jamaicans, who find the act reprehensible, are respected; but not at the expense of the individual's right to privacy and liberty to engage in intimate, adult and consensual sexual activities. Second, it signals that the State will refrain from using the law to interfere with private consensual sexual activities between adults. This is especially where the sexual activity does not cause unlawful harm to the parties involved (see R v Brown [1993] 2 All ER 75). Finally, it demonstrates that the rights of minority groups can be protected, even in a constitutional democracy based on majoritarian rule.

At this juncture, it is important to point out that the ruling in Roodal was overruled by the PC in Matthews v the State [2004] UKPC 33. In Matthews, the PC rejected the argument that the modification clause could be used to sidestep the clear intentions of the savings law, i.e. to protect all existing laws from any type of constitutional challenge including modification. They further held that any difficulty presented by the savings law clause must be addressed by the legislature, not the judiciary. Thus, the principle from Roodal, as well as the position of the dissenters in Boyce, is not binding on Jamaican courts.

However, the decision in Matthews flies in the face of well-established principles which demand that: (1) the Bill of Rights provisions be treated as living instruments capable of growth and development over time; and (2) any restriction on fundamental rights, such as the savings law clause, must be given both a narrow and strict construction.

Moreover, I agree whole-heartedly with Lord Nicholls of Birkenhead when he said that the Matthews decision leads to the court abdicating "its responsibility to ensure that the people of a country, including those least able to protect themselves, have the full measure of protection against the executive which a constitution exists to provide".

It is suggested that for these reasons, the PC should relinquish its position in Matthews and reaffirm the principles outlined in Roodal. Even if the PC cannot be prevailed upon to change its position, there is no obstacle to the Caribbean Court of Justice (soon to become our final appellate court, I hope) adopting the Roodal principle.

Conclusion

Dealing effectively with the disadvantaged position of homosexuals might require a legislative, rather than judicial, solution. But this is only if you want to wait another 10 to 15 years. Moreover, the constitutional issues arising from the buggery law are intimately tied to the presence of the savings law clauses in the Charter of Rights. To get rid of these will demand constitutional changes. This is another long and, might I add, sensitive process. Furthermore, it is unlikely that the Christian lobby groups will ever allow Parliament to repeal the buggery law.

In this case, the judicial solution offered by Roodal is not only more expedient but also opens the door for other unjust laws (such as those on abortion and marital rape exemption) to be successfully challenged.

Anika Gray is an attorney-at-law and tutor in the Faculty of Law, UWI, Mona. Email feedback to columns@gleanerjm.com and anika_gray@yahoo.co.uk.