Court battle over buggery laws

This country’s sodomy laws are being tested by a Trinidad-born gay rights activist who says his rights as an “openly homosexual man” are being contravened.

Jason Jones, who lives in the United Kingdom but frequently returns to TT, says he does not enjoy the same rights as heterosexual people because of Sections 13 and 16 of the Sexual Offences Act.

Those sections of the law criminalise buggery and serious indecency between adults and impose penalties which Jones’ lead attorney, British Queen’s Counsel Richard Drabble, says are not reasonably justifiable in a democratic society. Drabble contended that as a homosexual male, Section 13 breaches Jones’ rights. He also said there was no justification for the underlying criminalisation of sexual acts.

Drabble also argued that the long-standing legislation contravened Jones’ constitutional rights to privacy and were in direct contradiction to this country’s international human-rights obligation.

As part of their case, Jones’ lawyers are looking to sidestep the “saving clause” feature of the Constitution which precludes a court from striking down and reviewing legislation which was in existence when the Constitution was drafted and that has been marginally changed since.

Drabble said the law, which was amended in 1986 and 2000 repealed and replaced pre-Independence sexual offences legislation, was covered by the savings clause and introduced a much more significant penalty.

“What aim was the legislation pursuing?” he asked, as he labelled the offending law “undemocratic legislation.”

Justice Devindra Rampersad is presiding over the case and will give his ruling on April 12.

In response to Jones’ claims, Fyard Hosein, SC – lead counsel for the Attorney General, said this was not a case of morality or homosexuality, but law.

“It doesn’t matter how moral or archaic the law is...The court has to uphold the law,” he said, warning, also, that the court did not have the power to modify the law.

Hosein said Jones could only speak of his experiences but could not address the other aspects of the law, which imposes penalties on acts committed on minors, women and the disabled.

“All feelings of hysteria should be put aside,” Hosein said in his submissions.

He also warned against “reconstituting” this country’s sodomy laws, which, he said, will result in a modification of the core ingredient of the legislation.

He also pointed out that while the penalty for someone convicted under the law was 25 years’ imprisonment, courts have a discretion when imposing a sentence.

“No one can say the penalty is compulsory. It is a matter of legislative intervention. The courts have no right to impose morals on the legislature. It is not a matter for moral interpretation,” Hosein said, reminding the court that the legislation was passed by a two-fifths majority in Parliament.