KINGSTON, Jamaica, CMC – Gay rights activist Maurice Tomilson Friday suffered a setback in his challenge of the buggery laws in Jamaica after a three-member panel of judges unanimously dismissed his matter.
The judges of the island’s Constitutional Court ruled that the savings law clause of the Constitution prevents it from enquiring into the section of the Offences of the Against the Person Act, which prohibits buggery.
Tomilson had asked the court to determine whether it had 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 immunize from constitutional challenge existing laws that criminalize 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.
Justice David Batts delivered the unanimous ruling on behalf of a three-member panel of judges. He said constitutional amendments in 2011 “are clear” that “Parliament intended to protect laws related to sexual offenses from review for unconstitutionality.”
“The claim in consequence stands dismissed,” the judge said, adding that costs have been reserved for further submission.
However, the attorney said they would not be pursuing costs given the nature of the matter and the public interest.
“So the order will be that there will be no order as to costs,” the court ruled.
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