Appeal Court to rule on gay rights in Jason Jones appeal

TRINIDAD and Tobago’s buggery and serious indecency laws are again in focus, as the Court of Appeal has been asked to overturn a ruling of the High Court which deemed portions of local sexual-offences law unconstitutional because they criminalised sexual relations between consenting adults of the same sex.

On Wednesday, Justices of Appeal Nolan Bereaux, Charmaine Pemberton and Vasheist Kokaram heard submissions from a team of attorneys for the State, the Evangelical Council of Churches and Trinidadian LGBTQIA+ activist Jason Jones, who filed the original constitutional claim in 2017.

The State has appealed the April 12, 2018, ruling of Justice Devindra Rampersad.

The Council of Churches entered as an interested party.

Rampersad had modified sections 13 and 16 of the Sexual Offences Act, which criminalised buggery and serious indecency even between consenting adults, and declared them unconstitutional.

Jones has asked him to determine whether the State had the constitutional authority to criminalise same-sex intimacy.

The judge’s modification of the sections introduced the element of consent, as section 13 outlawed anal intercourse between two men and a man and woman. At the time, he said it was a “non-intrusive” option.

The judges have reserved their ruling, acknowledging they have a monumental task ahead of them.

Speaking after the all-day hearing at the Hall of Justice, Port of Spain, Jones told the media there were no surprises, as the State’s arguments were a rehash of its original position in the High Court.

However, he said what was revealing was that the local courts have repeatedly asked why the State is retaining these laws and there is no answer… "Regardless of the savings-law clauses and the Constitution, we are talking about the rights of some 100,000 LGBTQIA+ citizens in TT.

“...Why are we spending all this money and retaining these laws?”

Jones also cited local immigration laws which, he said, prevented LGBTQIA+ people from entering the country as guests.

“The modernisation of our democracy is at stake here and this is the beginning of this modernisation.”

In his submissions on the appeal, Senior Counsel Fyard Hosein, who led the State’s legal team, referred the judges to the savings-law provision of the Constitution, which protects pre-independence legislation from review, the Constitution and the various legal authorities they should look at.

Hosein said the case was entirely for the courts.

"This is not a case about morality or the spiritual positions taken by religious bodies.

“This is a matter that turns on the interpretation of the Constitution…The court is the guardian of the Constitution.”

In 2018, when the appeal was filed, then attorney general Faris Al-Rawi made it clear the State was not taking an adversarial approach but wanted a comprehensive judicial determination on the controversial issue.

In his submissions, Hosein provided an analysis of the sexual offences legislation, including

He acknowledged the Sexual Offences Act of 1986 increased the penalties for the offence of buggery, while gross indecency was narrowed to serious indecency, with a change in the penalties.

However, he said Parliament had the power to alter an existing law, post-1976, by making different provisions or modifying it.

He contended the 1986 act did not modify the elements of buggery and gross indecency from the 1925 Offences against the Person ordinance but only increased the maximum sentences and did not significantly derogate any rights under the Constitution.

Hosein said while the legislation appeared archaic and anti-liberal, it was the will of the Parliament, which the court should not usurp.

“It is a legislative choice."

On behalf of the Evangelical Churches, Senior Counsel John Jeremie focused on comments Rampersad made in his 2018 ruling.

"It is regrettable that any judge can disregard settled jurisprudence with respect to the country's highest court. It cannot be right for a judge to express himself in that way in a matter as important as this."

He also relied on his team’s written position, which mirrored that of the State on the approach the court should take in determining the appeal.

In countering the State’s arguments, UK King’s Counsel Richard Drabble, who made submissions by video link from the UK, said the State failed to adduce any “coherent and legitimate aim by the criminalisation of these acts.”

Drabble maintained that the changes to the law in 1986 were not as minor as the State contends but was a “whole new body” of law with increased penalties,

"You are not going to make a gay man ungay.”

Drabble urged the court to consider the derogation of the rights of a gay man and the effect the clauses had on his autonomy and right not to be subjected to vilification for expressing himself.

He said the legislation was an attack on the identity of a gay man and subscribed punishment for a lifestyle.

“It is not a simple disapproval, but criminalises a lifestyle.”

Drabble said any prohibition of a right under the Constitution must be reasonably justified and the imposition of what could be equated to a life sentence was not. Section 13 of the 1986 act imposes a 25-year prison sentence for a conviction for buggery.

Drabble said the increase in the penalty to 25 years was not achieving any policy to encourage a particular form of family life.

“It is not rational.” He reiterated there was an absence of a policy statement from the Executive for the decision to criminalise anal sex.

In reply, Hosein said it was not for the Executive to justify the intent in passing the law.

“That is for the legislature.”

At the beginning of the hearing, Bereaux, president of the panel, started by saying he and his colleagues recognised Rampersad made some highly "unfortunate" statements on constitutionality that will be dealt with in their judgment.

At the end of the hearing, Kokara, asked Jones about his attire – a rainbow-coloured tunic from local designer Robert Young from his label The Cloth. Kokaram acknowledged that TT was a multicultural society which was “more than willing to modernise the law.”

Rampersad’s judgment has been cited in a recent same-sex case in India with a similar result to Jones’s constitutional challenge.

Jones has also said he also intends to pursue marriage-equality rights for the LGBTQIA+ community.

Also representing Jones were attorneys Rishi Dass, SC, and Marina Narinesingh. The Equal Opportunity Commission also had a listening brief at the appeal.