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“[…] The [Appeal] Court ruled that, despite modern thinking and growing public support for human rights, parts of our Constitution still protect colonial laws. The judges admitted their limitations: they don’t make the laws, they interpret them. The real work, they said, is for Parliament.
“That ruling […] was a reminder that we are still living inside a system built for another era. An era that continues to echo loudly in who has access, who has voice, who has value…”
The following Letter to the Editor on this week’s Appeal Court ruling in the Jason Jones vs Attorney General case, which upheld legislation against buggery, was submitted to Wired868 by Omar Mohammed, a Board of Trustees director at The Cropper Foundation and director at CAISO: Sex & Gender Justice:
Photo: Annalicia Caruth/ Wired868.
I didn’t grow up thinking much about the Constitution. Most of us don’t. It’s not something you learn about in the same way you do about the first Trinbagonian to win an Olympic gold medal or the lyrics to the national anthem.
You don’t sit in school assemblies debating the savings clause or whether the framers of the Independence Constitution ever imagined a Trinidad and Tobago where someone could be locked up for who they love.
But eventually, it finds you. Maybe not the document itself, but what it allows. What it prevents. What it refuses to let go of. And in that refusal, what it says—often with violent silence—about whose rights matter and whose do not.
The recent decision in Jason Jones vs the Attorney General was one of those moments. The Court ruled that, despite modern thinking and growing public support for human rights, parts of our Constitution still protect colonial laws.
The judges admitted their limitations: they don’t make the laws, they interpret them. The real work, they said, is for Parliament.
That ruling wasn’t just about one man or one community. It was a reminder that we are still living inside a system built for another era. An era that continues to echo loudly in who has access, who has voice, who has value.
So here we are, in another election season, hearing promises about roads, crime, education, and jobs. All important, yes. But none of these things can fully flourish when the very framework that underpins them is stuck in the past.
To be fair, constitutional reform isn’t the kind of issue that wins votes. It’s technical. It’s slow. It doesn’t make for good soundbites. But it matters deeply.
Because if we’re being honest, our Constitution wasn’t written by us. It was inherited. Revised, yes, but never truly rewritten in our own image. It holds too many assumptions that no longer serve us—assumptions about authority, identity, governance, and the limits of justice.
We don’t talk about it enough, but who gets to write the rules is one of the most political questions there is. That’s why the growing call for a civil society-led reform process is not only timely, it’s necessary.
(via Office of the President.)
In April last year, over 30 organisations across the country signed onto a letter calling for just that: a process that centres people, not power. Not just a review of clauses and sections but a real conversation about the kind of nation we want to be, and how we structure ourselves to get there.
It’s not about replacing one elite group with another. It’s about creating space—real, meaningful space for people to engage with the most important text in the country.
And to ask hard questions: What does representation mean today? How do we ensure equality before the law isn’t just symbolic? What protections do we need that didn’t exist in 1962? And how do we guard against power when power forgets who it serves?
Photo: Annalicia Caruth/ Wired868.
Civil society has always done the quiet work of democracy. It’s there when the state can’t be. It fills gaps, tells the stories that get ignored, brings communities together, and keeps pressure on systems that otherwise go unchecked. It doesn’t get the credit it deserves, but that’s never really been the point.
Still, if we’re going to get constitutional reform right, civil society has to be at the centre of it. Not because it has all the answers, but because it knows how to ask the right questions. And because it’s closest to the people who have the most to lose when systems fail.
We’ve seen what happens when reform is rushed or top-down: communities disengage, trust erodes, and the outcome lacks legitimacy. But when reform is shaped through real dialogue—over time, across divides, and with care—it builds something stronger than law. It builds ownership.
(via OPM.)
This isn’t about rewriting history. It’s about finally writing our own. And it starts with whoever forms the next government.
The call is simple: commit to a process that reflects the people you’re asking to lead. Share power. Extend the timeline. Support civic education. Listen… not just to the loudest, but to the most excluded.
Because a constitution isn’t just about how we govern, it’s about how we live together; how we protect each other; how we imagine what’s possible.
(Copyright St Lucia Times.)
There’s still time to get this right. But it means letting go of the idea that change can only come from the top. It means trusting the people you serve. And it means recognising that the rules we live by must be written not just for us, but with us.
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“Because if we’re being honest, our Constitution wasn’t written by us. It was inherited. Revised, yes, but never truly rewritten in our own image. It holds too many assumptions that no longer serve us—assumptions about authority, identity, governance, and the limits of justice.”
Incorrect. It was written by Ellis Clarke, last Governor General and first president.
…which, Mohan, perhaps makes the point in an oblique way.
Is a governor general and president one of us in the sense in which the term is to be understood here?
Wasn’t he a Trinidadian by birth, culture, etc? Well marinaded in the country. Can’t see how he could be anything but…
Analysis of the Court of Appeal’s Ruling in Jason Jones v The State of Trinidad and Tobago
Introduction
The Court of Appeal’s decision to uphold the criminalisation of anal sex between same-sex adults under the Sexual Offences Act 1986 (SOA 1986) is deeply flawed. The ruling ignores the fundamental rights enshrined in section 4 of the Constitution of Trinidad and Tobago and misapplies the savings clause in section 6. Furthermore, it disregards progressive jurisprudence from the Commonwealth, which has consistently favoured the recognition and protection of LGBTQ+ rights under modern human rights frameworks.
1. Violation of Express Constitutional Rights
Section 4 of the Trinidad and Tobago Constitution expressly guarantees fundamental human rights and freedoms, including:
The right to liberty, security of the person, and enjoyment of property (s.4(a))
The right to equality before the law and protection of the law (s.4(b))
The right to respect for private and family life (s.4(c))
The right to freedom of thought and expression (s.4(i))
The criminalisation of consensual same-sex acts violates these rights in several ways:
Privacy Rights (s.4(c)): By criminalising consensual sexual activity between adults, the state is interfering in private affairs without justification, contrary to established international norms (see Dudgeon v UK [1981] ECHR 7525/76).
Equality before the Law (s.4(b)): The law discriminates on the basis of sexual orientation, violating the principle of equality before the law (see Toonen v Australia, UNHRC CCPR/C/50/D/488/1992).
Personal Liberty (s.4(a)): The threat of criminal sanction restricts the liberty of LGBTQ+ individuals, treating them as second-class citizens in violation of fundamental rights.
2. Misapplication of the Savings Clause (s.6 of the Constitution)
The majority in the Court of Appeal placed undue reliance on the savings clause in section 6 of the Constitution, which was originally intended to preserve laws in the transitional period from colonial rule. However, modern Commonwealth jurisprudence has recognised that savings clauses cannot be used to shield discriminatory laws from scrutiny indefinitely.
In McEwan v Attorney General of Guyana [2018] CCJ 30 (AJ), the Caribbean Court of Justice (CCJ) held that even where a savings clause exists, laws must be interpreted in light of modern constitutional values. Similarly, in LGBT decriminalisation cases in Belize and India (Caleb Orozco v AG of Belize [2016] SC and Navtej Johar v Union of India [2018] SCC 135 SC), courts ruled that savings clauses cannot override fundamental rights. The Court of Appeal in Trinidad and Tobago failed to follow these precedents, thereby failing in its duty to protect fundamental human rights.
3. Inconsistency with the Doctrine of Constitutional Supremacy
The Constitution of Trinidad and Tobago is the supreme law, meaning that any law inconsistent with it is void to the extent of the inconsistency. Section 2 of the Constitution expressly provides:
“This Constitution is the supreme law of Trinidad and Tobago, and any other law that is inconsistent with this Constitution is void to the extent of the inconsistency.”
By upholding SOA 1986 despite its clear inconsistency with section 4 rights, the Court of Appeal has failed to uphold constitutional supremacy. The High Court’s original ruling correctly identified that section 13 and section 16 of SOA 1986 were unconstitutional, and the appellate court erred in reversing this finding.
4. The Role of Parliament and Judicial Responsibility
The majority ruling asserted that judges cannot change the law and that reform is the responsibility of Parliament. This position is legally unsound. While Parliament has the power to legislate, the judiciary has the authority—and indeed the duty—to interpret the Constitution and strike down laws that violate fundamental rights (see Minister of Home Affairs v Fisher [1980] AC 319 and Matadeen v Pointu [1999] UKPC 66). Courts across the Commonwealth have exercised this power in cases concerning LGBTQ+ rights, including Nadan and McCoskar v State [2005] FJHC 500 (Fiji), where sodomy laws were struck down as unconstitutional.
5. The Problematic Inclusion of Religious Interests
The involvement of a religious body as an interested party in the litigation raises serious concerns about the separation of church and state. The Constitution guarantees freedom of religion but does not permit religious doctrine to dictate secular law. The ruling effectively imposes religious morality on all citizens, undermining the principle of neutrality in state governance (Reference re Same-Sex Marriage [2004] SCC 79).
Conclusion
The Court of Appeal’s decision is legally unsound and inconsistent with modern human rights jurisprudence. The ruling ignores express constitutional rights, misapplies the savings clause, contradicts the principle of constitutional supremacy, and abdicates judicial responsibility in favour of legislative inertia. The judgment should be challenged at the Privy Council or, failing that, repealed by Parliament to align Trinidad and Tobago’s laws with international human rights standards and constitutional principles.
Recommendation: Immediate legislative or judicial intervention is required to rectify this decision and ensure that all citizens enjoy equal protection under the law.
Fantastic arguments. Thank you, sir! Thank you to Jason Jones and his legal team. The Republican of Trinidad and Tobago needs to jump into the 2020s!