Derek Achong
Senior Reporter
derek.achong@guardian.co.tt
The United Kingdom-based Privy Council has declared this country’s homophobic buggery and serious indecency law unconstitutional.
Delivering a judgment at the United Kingdom Supreme Court Building in London, England, yesterday afternoon, five Law Lords upheld Trinidad-born British LGBTQIA+ activist Jason Jones’ final legal challenge over the legality of the law.
The Board found that the local Court of Appeal was wrong to have overturned former High Court Judge and current Appellate Judge Devindra Rampersad, who upheld Jones’ novel case in 2018.
The lawsuit centred around Sections 13 and 16 of the Sexual Offences Act (SOA), which was passed by Parliament in 1986.
The legislation made it an offence for adults, regardless of their sexual orientation, to engage in anal intercourse or buggery. It also created the offence of serious indecency but provided an exemption for consenting heterosexual couples.
In deciding the case, Lords Philip Sales and Andrew Burrows noted that both Justice Rampersad and the Court of Appeal correctly ruled that the legislation breaches fundamental constitutional rights and discriminates against citizens based on their sexual orientation.
However, they ruled that the majority of the Appeal Court was wrong to reverse Justice Rampersad’s decision on the non-applicability of the constitutional savings clause.
The clause under Section 6(2) of the Constitution precludes judicial intervention on legislation that was left in place when T&T became a Republic in 1976 or colonial-age laws that were repealed post 1976 but were essentially re-enacted in new legislation.
The Board found that the clause could not apply as the 1986 Act did not repeal and re-enact segments of the Offences Against the Person Act of 1925 that created the offences.
“In the Board’s view, sections 13 and 16 of the SOA 1986 went beyond repealing and re-enacting with modifications the existing law. Rather, they constituted a new law,” they said.
The Board then considered Section 13 of the Constitution, which prevents challenges to laws that infringe citizens’ fundamental constitutional rights if such laws are passed by a special Parliamentary majority and can be proven to be reasonably justifiable in a society that respects individual rights and freedoms.
Noting that the legislation did receive the requisite super-majority, the Law Lords found that they had to consider whether the provisions were justifiable when Jones’ filed his case over a decade ago instead of when the legislation was passed four decades ago.
“The constitutional rights in sections 4 and 5 are to be interpreted in a way which makes them practical and effective rather than theoretical and illusory. This means practical and effective in the present day, not in the past,” the Law Lords said.
The Law Lords described the Office of the Attorney General’s claim that the legislation was justifiable based on the fact that it has been in place for decades as weak.
“The mere fact that a repressive law has survived from colonial times so as to be “traditional” in that sense plainly could not furnish a legitimate objective for the purposes of a proportionality analysis under the constitution,” they said.
“Although members of the public who regard homosexuality as immoral may be shocked, offended or disturbed by the commission by others of private homosexual acts, this cannot on its own warrant the application of penal sanctions when it is consenting adults alone who are involved,” they added.
The Law Lords requested further submissions from Jones’ lawyer Anand Ramlogan, SC, of Freedom Law Chambers, on the appropriate remedy in the case in light of their findings.
However, they found that Justice Rampersad’s actions in modifying the legislation to exempt consenting adults from criminality were appropriate.
“Justice Rampersad’s order appears to meet precisely what is needed while adhering to a principle of doing the minimum necessary to ensure that fundamental rights are upheld,” they said.
In a press release, Ramlogan and his chambers, 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 broad-mindedness 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.
It said that the judgment would provide useful guidance in other cases seeking to challenge antiquated legislation that infringes on fundamental rights.
“The savings clause remains in force, but the decision provides an important basis for scrutiny where Parliament has chosen to replace old laws with new provisions,” it said.
Jones was also represented by Amanda Clift-Matthews, Peter Laverack, Ganesh Saroop, and Kate Temple-Mabe. The Attorney General’s Office was represented by Peter Knox, KC, and Robert Strang.
