Justice Rampersad: “The claimant, and others who express their sexual orientation in a similar way, cannot lawfully live their life, their private life, nor can they choose their life partners or create the families that they wish. To do so would be to incur the possibility of being branded a criminal. The Act impinges on the right to respect for a private and family life.”
The following Letter to the Editor on the repeal of Trinidad and Tobago’s buggery laws was submitted by barrister and senior lecturer, Dr Emir Crowne:
Earlier today, in Jones v AG of Trinidad and Tobago, CV 2017-00720, Justice Devindra Rampersad of the High Court declared sections 13 and 16 of the Sexual Offences Act to be unconstitutional.
Section 13 criminalised buggery between two men or a man and a woman. It carried a 25-year sentence on conviction. Section 16 criminalised acts of “serious indecency” and carried with it a five-year sentence.
“Serious indecency” is defined as an “act, other than sexual intercourse (whether natural or unnatural), by a person involving the use of the genital organ for the purpose of arousing or gratifying sexual desire.” The statutory root of these offences lies in the 1925 Offences Against the Person Ordinance, which was eventually repealed and replaced with the Sexual Offences Act, 1986.
However, sections 13 and 16 of the Sexual Offences Act are, on their face, a violation of several constitutionally entrenched rights, namely, the right of the individual to life, liberty, security of the person; the right of the individual to equality before the law and the protection of the law (particularly in relation to acts of so-called serious indecency); the right of the individual to respect for his private and family life; and even freedom of thought and expression (The Constitution, ss. 4(a), 4(b), 4(c), and 4 (i)). All of these were cited by Jones in paragraph 9 of his submission to the Court.
However, the plain unconstitutionality of these offences is normally immunised by section 6 of the Constitution, the so-called “savings clause.” As the name suggests, it immunises laws that were in effect before the 1976 Constitution and shields them from constitutional scrutiny (the death penalty, for instance).
Section 6 protects not only existing laws but “an enactment that repeals and re-enacts an existing law without alteration” and “an enactment that alters an existing law but does not derogate from any fundamental right guaranteed by this Chapter in a manner in which or to an extent to which the existing law did not previously derogate from that right.” (The Constitution, ss. 6(1)(b) and 6 (1)(c)).
The question for the High Court was whether the Sexual Offences Act was a ‘repeal’ and ‘re-enactment’ of the 1925 Ordinance (as to benefit from the saving clause and remain unconstitutional) or was it a new law (and therefore properly subject to constitutional scrutiny).
The long title of the Sexual Offices Act provided the clue, if not the answer (Jones v AG, paras. 61 – 63). It is titled, “An Act to repeal and replace the laws of Trinidad and Tobago relating to sexual crimes, to the procuration, abduction and prostitution of persons and to kindred offences” (emphasis added).
Parliament sought to “repeal and replace” the existing law with something new; it was not merely a “repeal and re-enact.” More substantively, Justice Rampersad examined the language of the new 1986 Act as compared the 1925 Ordinance and found the breadth and scope of the offences to be of material difference such that the law was clearly not a re-enactment but a fresh piece of legislation (Jones v. AG, paras. 65 – 72).
Section 6 of the Constitution and its dreadful savings clause did not apply. The Sexual Offences Act was open to constitutional scrutiny.
Now, the Preamble to the Sexual Offences Act indicates that it was enacted pursuant to ss. 13(1) of the Constitution and that “it shall have effect even though inconsistent with sections 4 and 5 of the Constitution.” (ibid.). Subsection 13(1) of the Constitution, in turn, provides that:
“An Act to which this section applies may expressly declare that it shall have effect even though inconsistent with sections 4 and 5 and, if any such Act does so declare, it shall have effect accordingly unless the Act is shown not to be reasonably justifiable in a society that has a proper respect for the rights and freedoms of the individual.” (emphasis added)
The task for Justice Rampersad, therefore, lay in assessing whether the infringement of Mr Jones’ constitutionally protected rights was reasonably justifiable. It was, Justice Rampersad found, not.
First, the Court found there to be a clear violation of the constitutionally protected right of the individual to respect for his private and family life. As the Court stated in para. 92:
“The claimant, and others who express their sexual orientation in a similar way, cannot lawfully live their life, their private life, nor can they choose their life partners or create the families that they wish. To do so would be to incur the possibility of being branded a criminal. The Act impinges on the right to respect for a private and family life.”
The burden then fell on the State to justify the infringement. Indeed, as the Constitution was supreme, any infringement of a constitutionally entrenched right must be justified by the State.
Justice Rampersad acknowledged that there were conflicting authorities on this point (ibid., para. 96), but his rationale is undoubtedly solid. If the State chooses to enact constitutionally encroaching legislation, then it is the State which must justify such encroachments (Jones v. AG, paras. 100 – 101; and 134).
The test to determine whether a constitutional encroachment of this sort is justified is, essentially, whether the encroachment is of sufficient importance, rationally connected to the legislative objective and proportional (Jones v. AG, paras. 137 – 140).
The first limb of the test could not be met. As ‘free and democratic’ societies were all moving towards the de-criminalising of consensual homosexual acts (Jones v. AG, paras. 142 – 144), the prohibitions found in sections 13 and 16 of the Sexual Offences Act were, by definition, not of sufficient importance to justify the infringement of Mr Jones’ constitutionally protected rights.
Sections 13 and 16 of the Sexual Offences Act were therefore declared unconstitutional and of no effect to the extent that they criminalise consensual sexual conduct between adults. Justice Rampersad then invited further submissions as to whether the provisions should be struck down in their entirety.
In the end, although the High Court traversed some rugged constitutional terrain in arriving at its decision, Justice Rampersad’s reasoning is sound on all fronts. He is to be commended for acting when others (politicians most notably) have dithered. His judgement is a poignant reminder that the Constitution protects the rights of all citizens, and not merely the rights of the majority, the politically connected, the well-financed and/or the religiously zealous.