Trinidad: Appeal Court overturns ruling on buggery laws in landmark case

(Trinidad Guardian)- The Court of Appeal has overturned a judge’s decision to uphold a novel constitutional challenge over this country’s homophobic buggery and serious indecency laws.

It was a split decision with Appellate Judges Nolan Bereaux and Charmaine Pemberton siding with the State’s appeal in the landmark case brought by LGBTQI+ activist Jason Jones.

Justice of Appeal Vasheist Kokaram delivered a dissenting judgment supporting the initial ruling in the case by High Court Judge Devindra Rampersad in 2018.

The majority agreed that Sections 13 and 16 of the Sexual Offences Act were unconstitutional.

However, they found that even without these laws, such acts were still prohibited under colonial-era legislation. As a result, they struck down the 25-year sentence for buggery under Section 13, ruling that the original five-year penalty should apply. They also ruled that exemptions from prosecution under Section 16, which exclude homosexuals, should no longer stand.

Justice Bereaux acknowledged that the ruling may be difficult for some to accept but emphasised, “As unpalatable as that may be, that is the effect of Section 6(2) of the Constitution.”

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

“It is an emotive issue which engages vibrant discussion in the court of public opinion.” He added, “Judges cannot change the law. We give effect to Parliament’s intention.”

His ruling, supported by Justice Pemberton, argued that the “savings clause” in the Constitution protects colonial-era laws from legal challenges. He noted that when Parliament passed the Sexual Offences Act in 1986, it repealed and re-enacted parts of the 1925 Offences Against the Person Act, which criminalised buggery and serious indecency.

He found that the newer legislation further infringed constitutional rights by discriminating against homosexual men in defining that buggery is anal intercourse between two men or a man and a woman and excluding them from groups of individuals such as heterosexual couples, whose private activities are not covered by serious indecency.

Justice Bereaux questioned the need for these laws, noting that he could not find a single case where consenting adults were prosecuted for such acts. “I can see no benefit to the public interest in the criminalising of behaviours which are largely undetectable and are undetected,” he said, adding, “The offences and penalties imposed are largely an empty futility.”

Following the ruling, activist Jason Jones announced plans to appeal to the Privy Council. In a Facebook post, he said, “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.”

Jones also criticised the continued use of the constitutional savings clause, saying, “How on earth can Justice Bereaux and Pemberton uphold British Colonial Law in our Republican Courts using the ‘savings clause’ which was also shoved into our newly Independent Constitution by the British?”

He argued that it was originally meant only for a smooth transition of power and has no place in a modern democracy. “The savings clause has no place in a 21st Century democracy,” he said, adding, “The Government of T&T and our Parliament are derelict in their duties by not removing it so many years after we became a Republic in 1976.”