Derek Achong

Se­nior Re­porter

derek.achong@guardiam.co.tt

The Unit­ed King­dom-based Privy Coun­cil will have the fi­nal say in a nov­el con­sti­tu­tion­al chal­lenge over this coun­try’s ho­mo­pho­bic bug­gery and se­ri­ous in­de­cen­cy laws.

LGBTQI+ ac­tivist Ja­son Jones vowed to lodge a fi­nal bid be­fore the coun­try’s high­est ap­pel­late court, hours af­ter the lo­cal Court of Ap­peal up­held an ap­peal from the State over a judge’s de­ci­sion in his case on Tues­day. 

Jones took to his Face­book page to ex­press dis­ap­point­ment and frus­tra­tion at the out­come. 

“I will be ex­er­cis­ing my right of ap­peal and tak­ing this mat­ter to the Privy Coun­cil which again is an enor­mous anom­aly and mock­ery of our In­de­pen­dence that a British Court will make the fi­nal de­ci­sion in this mat­ter,” he wrote.

The ap­peal pan­el was not unan­i­mous. It was a split de­ci­sion with Ap­pel­late Judges Nolan Bereaux and Char­maine Pem­ber­ton sid­ing with the State’s ap­peal in the land­mark case pre­sent­ed by Se­nior Coun­sel Fyard Ho­sein.

 Jus­tice of Ap­peal Vasheist Kokaram de­liv­ered a dis­sent­ing judg­ment with the same con­clu­sions made by High Court Judge Devin­dra Ram­per­sad in 2018. 

Al­though the ma­jor­i­ty agreed that Sec­tions 13 and 16 of the Sex­u­al Of­fences Act were un­con­sti­tu­tion­al, they found that the sex­u­al con­duct crim­i­nalised by the leg­is­la­tion was still pro­hib­it­ed un­der a colo­nial-age law. 

Based on their find­ing, the judges struck out the 25-year sen­tence for bug­gery un­der Sec­tion 13 as they ruled that the orig­i­nal sen­tence of five years in prison should ap­ply. 

They al­so found that the cat­e­gories of in­di­vid­u­als, ex­empt­ed from pros­e­cu­tion for se­ri­ous in­de­cen­cy un­der Sec­tion 16, should not ap­ply as the pro­vi­sions of the old­er law, which did not make such dis­tinc­tions, sub­sist­ed. 

Jus­tice Bereaux ac­cept­ed that the court’s find­ings, based on a com­pre­hen­sive analy­sis of the leg­is­la­tion and the Con­sti­tu­tion, may be dif­fi­cult for some to di­gest. 

“As un­palat­able as that may be, that is the ef­fect of Sec­tion 6(2) of the Con­sti­tu­tion,” he said. 

He left it up to Par­lia­ment to step in to ad­dress the is­sue. 

“It is an emo­tive is­sue which en­gages vi­brant dis­cus­sion in the court of pub­lic opin­ion,” he said. 

“Judges can­not change the law. We give ef­fect to Par­lia­ment’s in­ten­tion.”

In his judg­ment, with which Jus­tice Pem­ber­ton agreed and on­ly added a hand­ful of com­ments, Jus­tice Bereaux said Jus­tice Ram­per­sad failed to prop­er­ly con­sid­er the ap­plic­a­bil­i­ty of the “sav­ings” clause un­der Sec­tion 6 of the Con­sti­tu­tion when he de­ter­mined that the cur­rent sex­u­al of­fences leg­is­la­tion was un­con­sti­tu­tion­al.

The clause shields Colo­nial laws that in­fringe on fun­da­men­tal Con­sti­tu­tion­al rights passed be­fore In­de­pen­dence in 1962 and be­com­ing a Re­pub­lic in 1976, from be­ing legal­ly chal­lenged.

Amend­ments which seek to al­ter saved laws are valid pro­vid­ed they do not ex­ceed the pre­vi­ous rights in­fringe­ments.

Saved laws are al­so shield­ed from leg­isla­tive amend­ments and mod­i­fi­ca­tions that ex­ceed pre­vi­ous rights in­fringe­ments un­less they (the changes) are rea­son­ably jus­ti­fi­able or passed by a spe­cial Par­lia­men­tary ma­jor­i­ty.  

Jus­tice Bereaux al­so not­ed that Jus­tice Kokaram wrong­ly found the sav­ings clause did not ap­ply as he con­clud­ed that the new­er leg­is­la­tion re­placed all laws re­lat­ing to sex­u­al of­fences.

“It is not enough to mere­ly look at the long ti­tle of the Act or fo­cus on the penal­ties to de­ter­mine whether the en­act­ment is a com­plete­ly new crea­ture or ex­ist­ed be­fore 1976,” he said. 

He said his col­league ig­nored the fact that when Par­lia­ment passed the Sex­u­al Of­fences Act in 1986, it re­pealed and par­tial­ly re-en­act­ed seg­ments of the Of­fences Against the Per­son Act of 1925, which al­ready crim­i­nalised bug­gery and se­ri­ous in­de­cen­cy. 

Jus­tice Bereaux con­sid­ered the case afresh and found the sav­ings clause ap­plied. 

He found that the new­er leg­is­la­tion fur­ther in­fringed con­sti­tu­tion­al rights by dis­crim­i­nat­ing against ho­mo­sex­u­al men in defin­ing bug­gery as anal in­ter­course be­tween two men or a man and a woman and ex­clud­ing them from groups of in­di­vid­u­als such as het­ero­sex­u­al cou­ples who can­not be pros­e­cut­ed for acts of se­ri­ous in­de­cen­cy. 

He al­so point­ed out that the penal­ties for the of­fences were in­creased. 

In find­ing that the change was not rea­son­ably jus­ti­fi­able in a so­ci­ety that has prop­er re­spect for the rights and free­dom of the in­di­vid­ual, Jus­tice Bereaux not­ed that he could not think of one case in which con­sent­ing adults, re­gard­less of their sex­u­al ori­en­ta­tion, were charged for the of­fence. 

“I can see no ben­e­fit to the pub­lic in­ter­est in the crim­i­nal­is­ing of be­hav­iours which are large­ly un­de­tectable and are un­de­tect­ed,” he said. 

“The of­fences and penal­ties im­posed are large­ly an emp­ty fu­til­i­ty,” he added. 

He al­so stat­ed that the new­er leg­is­la­tion sought to dis­crim­i­nate against same-sex cou­ples and it could not le­git­i­mate­ly aim to act as a de­ter­rent and pro­mote moral­i­ty. 

“Even if le­git­i­mate, nei­ther can jus­ti­fy the in­ter­fer­ence with one’s free­dom of thought and ex­pres­sion nor can they jus­ti­fy choos­ing to tar­get men and women who in the pri­va­cy of their home choose to in­dulge in acts of se­ri­ous in­de­cen­cy, how­ev­er moral­ly re­pug­nant it may be to many,” Jus­tice Bereaux said. 

The Of­fice of the At­tor­ney Gen­er­al was al­so rep­re­sent­ed by Keisha Pros­per and Vin­cent Jar­dine. 

Jones was rep­re­sent­ed by Richard Drab­ble, KC, Rishi Dass, SC, An­to­nio Em­manuel, and Ma­ri­na Nar­i­nesingh. The T&T Coun­cil of Evan­gel­i­cal Church, which was an in­ter­est­ed par­ty in the case, was rep­re­sent­ed by John Je­re­mie, SC, and Anisa Kallap. 

Mem­bers of the LGBTQI-plus com­mu­ni­ty ex­pressed dis­ap­point­ment at the Court of Ap­peal de­ci­sion.

Co-founder of Pride TT Kennedy Everett Maraj said the court has en­trenched le­gal­ized dis­crim­i­na­tion, re­in­forc­ing deep-seat­ed prej­u­dice, ha­tred, and stig­ma against LGBTQ+ cit­i­zens.

“Their rul­ing is a step back­wards in the fight for an in­clu­sive, pro­gres­sive, and eq­ui­table so­ci­ety where every cit­i­zen - re­gard­less of sex­u­al ori­en­ta­tion - should have equal pro­tec­tion un­der the Con­sti­tu­tion,” he said.

Maraj added that the rul­ing crim­i­nal­izes het­ero­sex­u­al and ho­mo­sex­u­al in­di­vid­u­als, mak­ing it a crime for con­sent­ing adults to en­gage in pri­vate, in­ti­mate acts.

“This is not progress. This is re­gres­sion,” he said.

In a so­cial me­dia post, Queer Cor­ner Caribbean re­mind­ed par­lia­men­tar­i­ans of their du­ty to pro­tect all cit­i­zens, re­gard­less of sex­u­al ori­en­ta­tion, by en­sur­ing that T&T’s laws up­hold dig­ni­ty, equal­i­ty, and fun­da­men­tal free­doms.

“This rul­ing is yet an­oth­er ex­am­ple of ju­di­cial hes­i­ta­tion—an un­will­ing­ness to make bold de­ci­sions in the best in­ter­est of all cit­i­zens,” the group stat­ed

Ex­ec­u­tive Di­rec­tor of the Sil­ver Lin­ing Foun­da­tion Je­re­my Ed­wards said: “It is not enough to say ‘let the courts de­cide.’ Our lead­ers must act. Si­lence is not neu­tral­i­ty it is com­plic­i­ty.” Ed­wards said.

For­mer At­tor­ney Gen­er­al Garvin Nicholas said deem­ing bug­gery il­le­gal was the wrong way to go. In a post on his Face­book Page, he not­ed that this coun­try has a huge ho­mo­sex­u­al com­mu­ni­ty and to pre­tend oth­er­wise is like pre­tend­ing T&T has good gov­er­nance.

—With re­port­ing by

Carisa Lee