I did some reading on the three primary rules governing the interpretation of laws by courts. The three rules are literal, mischief and golden. The literal rule has been the most commonly used technique by judges for interpreting the law and has only been sidelined where the court believed a literal interpretation would somehow be inappropriate, create mischief, civil unrest, or be otherwise unfair. It is difficult to gauge interpretations based on the mischief and golden rules, therefore, I am not going to discuss those rules here.
Based on part 1 of my legal ramblings I deduced that as per literal interpretation, the Sexual Offences Act was discriminatory “on the ground of being male or female”. However, my investigation into what is called Savings Clauses has put me in a bit of a conundrum. My understanding of the Constitution of Jamaica with a little help from sages such as Kenneth Hall and Stephen Vasciannie led me to assent that Savings Clauses were inserted into constitutions of the Caribbean to protect the old executive British order. There was a pontificate presumption by the British Imperialists that no laws in effect prior to Independence infringed on the human rights of Caribbean citizens.
According to Section 26 (8) of the Jamaican Constitution:
Nothing contained in any law in force immediately before shall be held to be inconsistent with any of the provisions of this chapter; and nothing done under the authority of any such law shall be held to be done in contravention of the provisions.
So with all this flaming talk of legal reform by the Government of Jamaica we are left with a Savings Clause that in many instances, deny our human rights as citizens of Jamaica. Some laws and sections of the Constitution have been repealed or revised to account for progressive changes to our human rights. However, since the Savings Clause ignores and denies us some of those rights, in effect, we remain violated, discriminated against, and harassed because we want to engage in “buggery”, “gross indecency” and “grievous sexual” assault with our consenting adult partners of the same gender.
We can argue all we want as LGBT persons and allies, fact is, although some of our laws are discriminatory and disrespectful to human dignity, any changes to those laws are ab initio because of the Savings Clause. Any such law is inconsistent with the Chapter and cannot be used as a basis for adjudicating contemporary progressive human rights.
While our lowly government members pretend at international conventions and conferences to be ardent supporters and legislators of the Universal Declaration of Human Rights, the centennial lack of political will to remove or revise the Savings Clause by a simple majority (since the Savings Clause was not entrenched in the constitution) is distasteful, discriminatory, unfair and inhumane in my opinion.
The effect is we are left with an Offences Against the Person Act, for example, which is bigoted, given that the offence of pleasuring the anus with a “carnal penis” [even in holy heterosexual marriages] was gazetted and saved by the almighty Clause. And while the Savings Clause is not entrenched in stone, I don’t know when we will find 32 members of the Lower House, 11 members of the Upper House and a Governor General (even though we already found the Queen) to amend, or rather remove buggery between consenting adults from the Savings Clause.
What will my government do? Do we need external pressure from super powers to recognize the inhumanity of saving flogging, buggery (between consenting adults), whipping or the death penalty? But oh! We’re independent nuh? Silly me! Then again, it was Massa who damned us with this Savings Clause so maybe David Cameron and his conservative executive with a little help from Hussein can once again force the hands of our astute legislators.
Up next is my appeal to the Government of Jamaica for a revision of those laws that criminalise some homosexual acts, in light of the view that they contribute to the homophobic attitude of my fellow citizens.