BUGGERY LAW SHOWDOWN - Tomlinson banking on Trinidad ruling to bolster similar legal challenge for Jamaica next year

Gay-rights activist Maurice Tomlinson has expressed optimism about buggery law reform in Jamaica following the Judicial Committee of the Privy Council’s (JCPC) decision to decriminalise same-sex intimacy in Trinidad and Tobago.

“This is a wonderful development not only for my case against Jamaica’s archaic anti-buggery law but also for regional human rights. One of the Caribbean’s final courts has struck down a vestige of our dark colonial past that kept our citizens in bondage,” he told The Gleaner hours after the judgment was handed down on Tuesday.

The JCPC, the final appellate court of Trinidad and Tobago, ruled that the island’s anti-buggery laws violate fundamental rights and must be interpreted subject to the Constitution to make it clear that they do not criminalise private, consensual sexual relations between adults of the same sex.

This marked the end of an 11-year legal battle led by 62-year-old dual citizen Jason Jones, who said he hoped it would “accelerate the fight for full equality”.

Jones had won his initial challenge in Trinidad’s High Court in 2018, but the Trinidadian government appealed and got that decision overturned, setting the stage for this final appeal.

Tomlinson, a Jamaica-born Canadian lawyer, has also been challenging Jamaica’s buggery laws in the courts since 2015.

‘Savings law’

In December 2023, he filed a motion to appeal the Supreme Court’s earlier decision, which ruled that the constitutionality of three sections of the Offences Against the Person Act “cannot be enquired into” because of the Constitution’s savings clause law.

The judges concluded that Jamaica’s buggery laws could not be challenged in the courts.

Sections 13(12) and 18 of Jamaica’s Charter of Rights and Freedoms immunise existing laws that criminalise sexual relations between men and preclude the legal recognition of homosexual unions, respectively, from constitutional challenge. They are referred to in the Commonwealth Caribbean as ‘savings law’ clauses.

The savings law clause refers to laws that existed before the Constitution and are still being enforced.

Three provisions under Jamaica’s 1864 Offences Against the Person Act (OAPA) – sections 76, 77 and 79 – explicitly make buggery illegal.

The OAPA was brought into force in 1864.

Tomlinson told The Gleaner that his appeal to the JCPC would be heard next year.

“Although the constitutions of Jamaica and Trinidad are different, this Privy Council decision will be highly persuasive as we share the same final court,” he said.

The attorney-at-law said his case took into account the savings law clause and that he would be arguing against it.

“By increasing the punishment for buggery to include registration as a sex offender, required to always carry a pass, or face a fine of $1 million plus one year of hard labour for each offence of not having that pass, the law has effectively been amended under the Sexual Offences Act,” he said. “The leading precedent says any amendment opens the ‘law’ to review. And our laws are not only found in one document. They are sometimes found in multiple pieces of legislation.”

Meanwhile, Nickoy Wilson, programmes and advocacy manager at the Equality for All Foundation, said the Jamaican Government should take note of the fact that the island’s final appellate court recognises same-sex relations “even while our own Constitution does not”.

“It is really a reminder to our own Government that things are changing and that courts – not only outside of our system but even within our system – are beginning to recognise that same-sex relationships should be accorded the same level of legal protection and legal recognition that heterosexual relationships have enjoyed for quite a long time,” he said.

Wilson called on Parliament to take the initiative and review the law.

In 2014, then Opposition Leader Andrew Holness challenged then Prime Minister Portia Simpson Miller to revoke the anti-buggery law through a referendum. However, since forming the Government in 2016, Holness has not moved to hold a referendum on the matter.

Homosexuality is traditionally frowned upon in Jamaican society, where attitudes are influenced by hard-line religious and cultural values.

The courts in several Caribbean countries, including Barbados, Antigua and Barbuda, and St Kitts and Nevis, have struck down their buggery laws, which, Wilson reiterated, is an indication of change across the region.sashana.small@gleanerjm.com