Privy Council rejects criminalisation of consensual gay sex

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.