Another challenge to the buggery law has come the third or fourth if one were counting and will take place apparently in June when the case as filed by Javed Jaghai who is still a part of the Jamaica Forum for Lesbians Allsexuals and Gays, JFLAG who only days ago again hit its own wicket by excluding some homeless MSM from an International Day Against Homophobia and Transphobia, IDAHOT event held on May 17th at a local hotel symposium on homelessness with a community backlash the likes of which never before seen. Thankfully the real issue of the buggery law and privacy on one hand is finally going to be addressed as I have long contended the lobby has drifted too far via secularism, humanism and atheism (Javed is an atheist) with other side issues from the germane matter of simply buggery and whether I as an adult can privately practice with consent anal sex with another partner (male or female for that matter) but I am concerned about the Savings clause issue as had been pointed out by other legal minds.
Yesterday the Gleaner carried a piece regarding the challenge:
New legal bid launched to protect gays right to privacy
Barbara Gayle, Justice Coordinator
Another legal challenge has been filed against the country's buggery law.Gay-rights activist Javed Saunja Jaghai has gone to the Supreme Court seeking changes to ensure that consenting male adults do not face criminal charges for buggery.
Jaghai is seeking the go ahead to take his case to the Constitutional Court for a declaration that the private sexual activities between consenting males must be excluded from the Offences Against the Person Act.
If he is successful, it would mean that the right to privacy - as contained in the Charter of Rights and Freedoms (Constitutional Amendment) Act, 2011 - will include the right of two homosexual men to engage in intercourse in privacy without facing the risk of being charged with a criminal offence.
A case-management conference will be held next month in chambers at the Supreme Court.The attorney general has been named as a defendant in the matter.
Although Jaghai is seeking a declaration that private sexual activities between consenting males be excluded from the Offences Against the Person Act, he is also seeking an order that the act will continue to govern non-consensual acts and those which takes place with males under the age of 16.
In documents filed in court, Jaghai says he is a homosexual man and a citizen of Jamaica.
He disclosed that he was evicted from his house by his landlord on the alleged basis that his homosexuality would result in engaging in intimate acts with other men on the premises.He said the landlord had considered such acts as illegal under the Offences Against the Person Act.
Section 76 of that act makes it an offence for two men to be engaged in sexual activities.
The maximum sentence is 10 years' imprisonment.
Section 77 forbids such sexual acts for which the maximum sentence is seven years, while Section 79 of the act forbids gross indecency between men, for which the maximum sentence is two years.
negative effects of current law
In the court document, Jaghai states that the current law has negative effects on his daily life as well as the lives of other gay men."These provisions place the claimant, as a gay man, at risk of being evicted from his premises or arrested, prosecuted and convicted simply because he seeks to engage in sexual conduct that is integral to the expression of his identity and is carried out in a sphere of private intimacy," said Jaghai in his claim.
He argued further that because of the law, he is forced to deny his identity or contravene the law.
According to Jaghai, the fear of criminal sanctions impedes him, and may impede other homosexuals from accessing public-health facilities geared towards HIV and AIDS.
He contends further that the Constitution guarantees him the rights which were overwhelmingly approved by both political parties in 2011, and that includes the right to privacy.
Jaghai further argues that the right to privacy or the right to be left alone should be seen not simply as a negative right to occupy a private space free from government intrusion, "but as a right to get on with your life, express your personality and make fundamental decisions about your intimate relationships - which do not harm anyone else - without being penalized".
He has also listed in his affidavit instances in which men who were engaged in private and consensual activities have been prosecuted and convicted.
The Government is named as the defendant because the claimant contends that to date the Government has not given an undertaking that it will repeal the sections of the Offences Against the Person Act under which homosexuals can be charged.
He contends that the Government has violated and continues to violate his right to privacy and equality before the law as guaranteed by the Charter of Rights.In February, the United States-based advocacy group AIDS-Free World reported that it had filed a similar suit on behalf of Jaghai.
The group asked the court to determine if the anti-sodomy law breaches rights guaranteed under the Charter of Fundamental Rights and Freedoms which was passed into law in 2011.
That matter is scheduled to be mentioned on June 25.
Two homosexual Jamaicans have also mounted a legal challenge against the laws which criminalize the act of homosexuality, on the basis that they are unconstitutional and promotes homophobia throughout the Caribbean.
They have taken the matter to the Inter-American Commission on Human Rights, which is modeled on the European Court of Human Rights to which Jamaica is not a full member.
While any ruling made by that court would be only advisory, it would send a strong message of international disapproval of Jamaica's buggery laws.
Attorney at Law and lecturer at the University of the west Indies Law faculty Anika Gray had suggested several routes to a judicial solution to the privacy issue and the savings clause regarding sections 13(12) and 18 of the Jamaican Charter of Rights and Freedoms which in 2011 repealed the Bill of Rights chapter of the Jamaican Constitution. We have had other such suggestions by other eminent persons but for the most part the gay lobby/advocacy structures have ignored them it seems and are more exploring their own strategies than embracing that of others. Miss Gray also wrote then that The Jamaican State's complicity in perpetuating homophobia goes much deeper than the former PM's statement. The great bastions of state bigotry are sections 13(12) and 18 of the charter. These two sections immunize from constitutional challenge existing laws that
(1) criminalize sexual relations between men and
(2) 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. For other Commonwealth Caribbean countries, existing laws are those which existed before the constitution of the particular country came into being.It would appear that the presence of the savings law clause in the charter is intended to prevent local courts from following in the footsteps of their counterparts in other parts of the world. For example, national courts in both the United States and South Africa have made great strides in protecting the human rights of homosexuals. The US Supreme Court, in 2003, declared a Texas sodomy law a violation of the individual's fundamental right to liberty and privacy.
More recently, the South African Constitutional Court, in 2006, found that excluding homosexual couples from the definition of marriage was a violation of the South African Constitution.
It is ironic that the charter which was meant to expand the scope of fundamental rights for Jamaican citizens has also been used to deny homosexuals legal protection for their lifestyle choices.It is, however, my contention that the findings of the Privy Council (PC) inRoodal v the State  UKPC 78, and the dissenting judgment inBoyce and Joseph v R (2004) WIR 37, can be used to circumvent the debilitating effect of the savings law clause on a judicial review of Jamaica's buggery law.
From this starting point, the PC went on to find that Section 4 of the Trinidad and Tobago Offences Against the Person Act (TTOAPA), which authorized the mandatory death penalty, could be brought into conformity with the Constitution by making the death penalty discretionary. Thus, the savings law clause could not serve to hide Section 4 of the TTOAPA from judicial scrutiny.
Additionally, the dissenters in Boyce, when answering a similar question about the mandatory death penalty in Barbados, found that the wording of the savings law clause - and in particular the phrase 'nothing shall be held inconsistent with' - allowed the courts to exercise the power to modify the existing law. But only to the extent that the modification did not emasculate, void or render nugatory the existing law.
Sanitizing the buggery law
Currently, Section 76 of the Jamaican Offences Against the Person Act criminalize acts of buggery committed in both public and private, regardless of whether the participants are consenting adults. Courts in other jurisdictions and international human rights tribunal have found statutes of similar ilk to be in contravention of the right to privacy.
For example, the European Court of Human Rights in Dudgeon v the United Kingdom - 7525/76  ECHR 5 held that an Irish statute similar to Section 76 was in violation of Article 8 of the European Convention on Human Rights, which protects the right to private life. In light of this jurisprudence, there can be no doubt that Section 76 is a violation of the right to privacy that is protected under Section 13(2) (j) (ii) of the Charter of Rights.
Notwithstanding, Section 13(12) of the charter prevents the court from declaring Section 76 as unconstitutional. The finding in Roodal and the dissenting judgment in Boyce help us to overcome this formidable legal obstacle. How is it to be done?The modification clause in the Jamaican Constitution should be used to narrow the ambit of Section 76 to cover only acts of buggery committed in public. By restricting the illegality to the public sphere, Section 76 is neither emasculated nor rendered void. It is instead 'constitutionalised'. The Constitution allows restriction on rights to protect public morals, but only to the extent that the limitation achieves a legitimate objective and does not excessively infringe the individual's rights.
As such, buggery, which is considered immoral, can be criminalized in order to protect the morality of the majority. Nonetheless, the suggested limitation is not excessive - as is the case with the present Section 76 - since homosexuals are allowed to practise their sexual activities in the privacy of their homes.
Advantages of Sanitisation
This approach has three distinct advantages. First, the views of the majority of Jamaicans, who find the act reprehensible, are respected; but not at the expense of the individual's right to privacy and liberty to engage in intimate, adult and consensual sexual activities. Second, it signals that the State will refrain from using the law to interfere with private consensual sexual activities between adults. This is especially where the sexual activity does not cause unlawful harm to the parties involved (see R v Brown  2 All ER 75). Finally, it demonstrates that the rights of minority groups can be protected, even in a constitutional democracy based on majoritarian rule.
At this juncture, it is important to point out that the ruling in Roodal was overruled by the PC in Matthews v the State  UKPC 33. In Matthews, the PC rejected the argument that the modification clause could be used to sidestep the clear intentions of the savings law, i.e. to protect all existing laws from any type of constitutional challenge including modification. They further held that any difficulty presented by the savings law clause must be addressed by the legislature, not the judiciary. Thus, the principle from Roodal, as well as the position of the dissenters in Boyce, is not binding on Jamaican courts.
However, the decision in Matthews flies in the face of well-established principles which demand that: (1) the Bill of Rights provisions be treated as living instruments capable of growth and development over time; and (2) any restriction on fundamental rights, such as the savings law clause, must be given both a narrow and strict construction.Moreover, I agree whole-heartedly with Lord Nicholls of Birkenhead when he said that the Matthews decision leads to the court abdicating "its responsibility to ensure that the people of a country, including those least able to protect themselves, have the full measure of protection against the executive which a constitution exists to provide".
It is suggested that for these reasons, the PC should relinquish its position in Matthews and reaffirm the principles outlined in Roodal. Even if the PC cannot be prevailed upon to change its position, there is no obstacle to the Caribbean Court of Justice (soon to become our final appellate court, I hope) adopting the Roodal principle.
Dealing effectively with the disadvantaged position of homosexuals might require a legislative, rather than judicial, solution. But this is only if you want to wait another 10 to 15 years. Moreover, the constitutional issues arising from the buggery law are intimately tied to the presence of the savings law clauses in the Charter of Rights. To get rid of these will demand constitutional changes. This is another long and, might I add, sensitive process. Furthermore, it is unlikely that the Christian lobby groups will ever allow Parliament to repeal the buggery law.In this case, the judicial solution offered by Roodal is not only more expedient but also opens the door for other unjust laws (such as those on abortion and marital rape exemption) to be successfully challenged.
Anika Gray is an attorney-at-law and tutor in the Faculty of Law, UWI, Mona. Email feedback to firstname.lastname@example.org and email@example.com.
Legal Notes - Homophobia and human rights abuses