A landmark ruling

JUSTICE Devindra Rampersad’s ruling in the Jason Jones case is a landmark development in our jurisprudence. Not only is it a victory for the LGBTQ community, but through its striking down of the so-called “savings clause” of the Constitution it takes our legal system out of its archaic colonial past.

All stakeholders will have to take time to study the full implications of Rampersad’s ruling. But few can fault some of his more salient findings in relation to the right of an individual to privacy and human dignity.

“To this court, human dignity is a basic and inalienable right recognised worldwide,” the judge found. “Attached to that right is the concept of autonomy and the right of an individual to make decisions for herself or himself without any unreasonable intervention by the State.”

The judge found the buggery and other laws under the criminal law to be unconstitutional, invalid and a violation of the fundamental rights of people such as Jones everywhere. But even more tellingly, the judge declared the thinking that because the laws dated back to colonial times they were immune from legal challenge because of the “savings clause” of the Constitution as a kind of fiction.

Parliament, he noted, had passed new laws which replaced the old ones. In passing the Sexual Offences Act, the Parliament “did not repeal and re-enact a presumptively unconstitutional provision. Instead, it reinitiated the process of consideration, debate and purposeful contemplation of the provision.”

This makes complete sense as the Constitution itself should be the test by which our laws are judged, not whether the law is bottled from the past.

The implications are that this country can no longer avoid its responsibility to debate and pass its own laws and to review what has been handed down to us from the colonial era. The High Court has called on us as a society to do the right thing as an independent nation: to stop hiding behind the past and to forge boldly ahead with our future.

We strongly believe that the future must be one of true equality for all, not one where the rights of minorities are violated and where we mouth platitudes then condone homophobic hate. The law plays a crucial role in setting the tone.

The judge noted the challenged law’s purpose and continued inclusion on the law books was dubious and was “more vindictive than curative” since it wrongly penalised the consensual actions of adults.

Rampersad’s ruling is also significant in how it makes clear that when it comes to the law and matters of the State, religious views cannot be expected to supersede the rights and interests of all.

“This is not a case about religious and moral beliefs,” the judge said. “The belief of some, by definition, is not the belief of all and in the Republic of Trinidad and Tobago all are protected.” We strongly concur.