Regressive ruling

THE STATE has no business being in anyone’s bedroom. That is an uncontroversial position.

Or at least it should be.

In its regressive ruling of March 25 which re-criminalises anal sex between same-sex adults and resets the law to 1925, the Court of Appeal has effectively invited police to peep through the curtains.

The case, brought by the state against activist Jason Jones, was about gay rights.

But the implications of the court’s ruling are wider. Through the disapplication of fundamental human rights in favour of a colonial-era savings clause, all citizens have lost, not just Mr Jones.

By a majority 2-1 decision, the court set aside a previous ruling of the High Court which had struck down section 13 and section 16 of the Sexual Offences Act of 1986. It was, however, ordered that the 25-year sentence for anal sex be reduced to five years, in line with a 1925 law.

In justifying this, Justice of Appeal Nolan Bereaux, for the majority, stated a limb of the infamous “savings clause” – meant to preserve old laws in the transition from colonialism – preserved the 1986 laws perfectly, as if in solid amber, and rendered them immune to challenge based on breaching rights.

“Judges cannot change the law,” declared Justice Bereaux. “It is now left for Parliament to perform its constitutional role,” chimed Justice Charmaine Pemberton.

Yet, it is Parliament’s will that has ironically been overridden by the majority’s order to reduce the sentence and to quash other aspects of the 1986 law.

The savings clause has been given ascendancy over fundamental rights, decades after the circumstances justifying the first ended. The principle of coherence is thus jettisoned in favour of dangerous legal sophistry.

That sophistry is best embodied by the finding that the law was different enough to fall under the second limb of the savings clause yet identical enough to remain an “existing law.”

It is a queer interpretation of the will of Parliament to legislate as it sees fit, as occurred here by means of a supermajority when the law was passed in 1986 under the assumption that it might have to be defended in a court.

Plainly, this was not just about law.

The decision to allow a religious body as an “interested party” betrayed the teleological dimension of the matter.

The majority ruling arguably expresses two wedded positions: one on the narrowness of jurisprudence and one on suppressing gay rights. Neither is surprising.

But as Justice Vashiest Kokaram, the lone dissenting voice, observed, the hatred behind homophobia is not who we are as a people with a deep-seated respect for diversity.

If only the majority was courageous enough to see modern law as it should be seen – as a living, breathing thing.