Letters to the Editor

While parliamentarians act squeamish about buggery law, people suffer

Tuesday, December 18, 2018

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Dear Editor,

After reading the joint select committee's recommendations it is quite clear that some of our parliamentarians require a quick lesson in constitutional law. One wonders whether such knowledge shouldn't be a prerequisite to entering the business of lawmaking, but I digress.

After almost five years of a process of law review that occurred over two administrations, the joint select committee of Parliament reviewing the sexual offences and related Acts managed to sidestep the big-ticket issue that they were tasked with addressing.

The most important question before the committee was whether the definition of sexual intercourse was to be changed, so that regardless of who a person was raped by, and whichever orifice they were raped through, the horrendous act would be punished in an equitable manner.

This is critical because our current laws treat anal rape by a penis as less serious than anal rape by another body part, and even less serious than vaginal rape. Our current law also does not deem sexual relations between a father and son incestuous, but deems a relationship between a mother and son incestuous.

The committee, after receiving a significant number of recommendations from civil society to address this issue by amending laws to make them gender and orifice neutral, seeks to hide behind the Savings Law Clause since changes to these laws may cause the buggery law to lose constitutional protection.

The problem with this contention is that the Savings Law Clause, rather than being a bar to the committee making recommendations, is the very reason the issues are being raised with the committee in the first place. The Savings Law Clause acts as a bar to the Supreme Court to say certain laws violate constitutional rights. It doesn't stop a Parliament whose concerns go beyond human rights and include citizen safety and security. The Savings Law Clause is an irrelevant consideration for Parliament, whose role is to make law and who has the power to remove the very clause by constitutional amendment. Parliament has power over this clause and is not constrained by it.

To pretend that the Savings Law Clause creates any constitutional issues is disingenuous on the part of Parliament. Unless, the committee is saying that it wants the very laws which it tacitly acknowledges as discriminatory to be given primacy over the rights of Jamaicans. And while our parliamentarians act squeamish about the buggery law, sexual violence continues to adversely affect the lives and safety of Jamaicans they are supposed to serve.

Glenroy Murray

Advisor, Equality for All Foundation Jamaica Ltd


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