Jamaican gay activist’s constitutional challenge on hold
Maurice Tomlinson

The Court of Appeal ruled Friday that the long running constitutional challenge to Jamaica's anti-sodomy law by gay rights activist Maurice Tomlinson should remain on hold to allow for a separate trial to determine whether the Supreme Court had the jurisdiction to enquire into the constitutionality of the law.

The matter was being satellited to the appeal court for the second time, with the first being in respect of a Supreme Court ruling preventing then Public Defender Arlene Harrison Henry from joining the lawsuit.

In the second consideration, the attorney general and 10 religious groups have contended that Supreme Court Judge Justice Tricia Hutchinson erred in her 2022 ruling when she said there was no need for a separate trial to determine whether the court 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Sections 13(12) and 18 of the Jamaican Charter of Rights and Freedoms, which in 2011 repealed and replaced the Bill of Rights chapter of the Jamaican Constitution, immunise from constitutional challenge existing laws that criminalise sexual relations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 which were in existence before the charter came into force. The OAPA was brought into force in 1864.

In the ruling handed down Friday morning, the appeal court said it had unanimously determined that the judge had erred in her finding and was “plainly wrong”. It said Justice Hutchinson in arriving at her conclusion “erred in exercising her discretion to refuse the application”.

In ordering that her ruling in this respect should be set aside, the appeal court said the substantive claim by Tomlinson should be stayed pending a determination of the preliminary issue.

“A separate trial is to be held to determine the preliminary issue of whether the constitutionality of sections 76, 77 and 79 of the OAPA can be enquired into in light of the savings law clause in the charter. The trial on the preliminary issue is to be held as soon as possible on a date to be fixed by the registrar of the Supreme Court,” the Court of Appeal ruled.

Tomlinson in 2015 filed a claim In the Supreme Court challenging the constitutionality of sections 76, 77 and 79 of the OAPA, contending that criminalising homosexuality amounts to breaches of the rights guaranteed to him by the Constitution of Jamaica while further alienating and driving members of the LGBTQ community underground. He is being opposed by the government and 10 church groups.

Tomlinson is seeking to have the court declare that sections 76 and 77 of the OAPA do not apply to consensual sexual activities between any person age 16 or older, including persons of the same sex. He is also seeking a similar declaration in respect of the treatment of those acts under the 2009 Sexual Offences Act as well as the requirements for registration of such sex offenders and the reporting obligations under that statute.

Alicia Dunkley-Willis

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