Derek Achong
The Privy Council has ruled in favour of Jason Jones in his long-running legal challenge against laws criminalising consensual same-sex relations between adults in Trinidad and Tobago.
In a judgment delivered on Tuesday, November 10, the Board allowed Jones’ appeal and dismissed the Attorney General’s cross-appeal, finding that sections 13 and 16 of the Sexual Offences Act 1986 infringe his fundamental rights under the Constitution.
The Board agreed with former High Court Judge and current Appellate Judge Devindra Rampersad, who found that segments of the Sexual Offences Act 1986 that criminalised sexual acts between consenting males was unconstitutional.
It found that the constitutional savings clause, which precludes judicial intervention on legislation that was left in place when T&T became a Republic in 1976, did not apply as the 1986 legislation materially derogated from an 1925 Ordinance and could be considered a new law.
“It (1986 Act) was intended to be a fresh start in terms of the law on Sexual Offences,” the Law Lords said.
The Law Lords stated that the fact that the legislation was passed by a special parliamentary majority was irrelevant and did not prevent Jones’ challenge alleging that it (the legislation) was not reasonably justifiable in a society that respects individual rights and freedoms.
In its reasoning, the Board said the right to form an intimate and loving relationship with another person was central to an individual’s existence and identity.
It also rejected the suggestion that the mere fact that the laws had existed for a long time, or reflected colonial-era traditions, was sufficient justification for maintaining them.
The judgment noted that the Attorney General had presented no evidence to establish that retaining the provisions was reasonably justifiable.
In a press release, Freedom Law Chambers and its head Anand Ramlogan, SC, who represented Jones in the final hurdle of his lengthy legal challenge described that outcome as phenomenal.
“Gay rights form part of the wider struggle for human rights. Every person is entitled to the protection of the Constitution, regardless of their sexual orientation,” the release said.
“The judgment recognises tolerance and broadmindedness as hallmarks of the democratic society established by our Constitution,” it added.
It congratulated Jones for his courage and perseverance while facing harassment, violence, and the fear of arrest.
“His determination has secured a decision that affirms the constitutional protection of an intimate and fundamental part of human life,” it said.
The release noted that the Board invited further submissions on the precise remedial order for Jones.
It noted that the Board had taken the provisional view that the relief granted by Justice Rampersad, who modified the legislation to exempt consenting adults regardless of their sexual orientation, should be adopted.
Jones was also represented by Ganesh Saroop, Amanda Clift-Matthews, Kate Temple-Mabe.
