The pending constitutional contest of Jamaica's anti-sodomy law by gay rights activist Maurice Tomlinson has been put on ice.
This is to allow for a separate trial to determine whether the Supreme Court had the jurisdiction to question the legality of the statute, given the savings law clause in the Charter of Rights.
The Court of Appeal, in a judgment handed down last Friday morning, ruled that "a separate trial is to be held to determine the preliminary issue of whether the constitutionality of sections 76, 77, and 79 of the Offences Against the Person Act (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".
Sections 13 (12) and 18 of the Jamaican Charter of Fundamental Rights and Freedoms, which in 2011 repealed and replaced the Bill of Rights chapter of the Jamaican Constitution, immunise from constitutional challenge existing laws that criminalise sexual relations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 those which were in existence before the charter came into force. The OAPA was brought into force in 1864.
Friday's ruling came after the matter was 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 2018.
In this second foray, the attorney general and 10 religious groups had brought the appeal contending that Supreme Court Judge Justice Tricia Hutchinson had 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 OAPA in light of the savings law clause.
On Friday, the judges of the Appeal Court, in an oral judgment, said the court 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 be set aside, the Appeal Court said the substantive claim by Tomlinson should be stayed, pending a determination of the preliminary issue. In stating that the judge had also erred when she awarded cost to Tomlinson, the Appeal Court, in setting aside her order, ruled that no cost should be awarded.
The court, in the meantime, said the trial on the preliminary issue should be held as soon as possible on a date to be fixed by the registrar of the Supreme Court.
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 people 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.
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