The local Lesbian, Gay, Bi-sexual and Transgender (LGBT) community will have to wait a little over two months for the outcome of a novel constitutional lawsuit challenging this country’s homophobic laws.
High Court judge Devindra Rampersad yesterday reserved his decision after hearing submissions in the landmark case filed by Trinidad-born gay rights activist Jason Jones in the Port-of-Spain High Court. Rampersad is expected to deliver his eagerly anticipated judgment on April 12.
In the lawsuit, Jones is challenging the sections 13 and 16 of the Sexual Offences Act, which criminalises buggery and serious indecency even between consenting adults.
Jones is claiming that the long-standing legislation contravenes his constitutional rights to privacy and freedom of thought and expression in addition to being in direct contradiction to this country’s international human rights obligations.
Jones’ lawyers are seeking to bypass the “saving clause” feature of the Constitution which precludes courts from striking down and reviewing legislation which were in existence when the Constitution was drafted and that have been marginally changed since.
Presenting submissions yesterday, Jones’ lawyer Richard Drabble, QC, said the court should disregard the clause as successive amendments to the controversial legislation in 1986 and 2000 repealed and replaced pre-Constitution sexual offences legislation.
Describing the legislation as “undemocratic”, Drabble said: “What aim was the legislation pursuing?”
In response, head of the State’s legal team Fyard Hosein, SC, denied that there were material changes to the legislation except for an increase in the maximum sentence for buggery from 20 to 25 years.
He suggested that the amendments merely sought to develop existing legislation but did not alter the core ingredients of the offence.
“It does not matter how archaic or how dinosaur-like the law is. The fact of the matter is the court has to uphold the law,” Hosein said as he suggested that such a change should be done by Parliament through the passing of additional legislation.
While Hosein admitted that buggery laws had its roots in religious principles, he stated that the religion did not factor in their continued existence, as T&T is a secular state under the Constitution.
“Morality has its place but this is about law,” Hosein said as he called for the lawsuit to be struck out.
Hosein also submitted that Jones could only speak to the effect of the legislation on sexual activity between consenting homosexual men, such as himself (Jones), but not on behalf of women, minors and the disabled, who are all protected against buggery under the legislation.
The Equal Opportunity Commission (EOC), Sanatan Dharma Maha Sabha and a group of Pentecostal churches had successfully applied to intervene in Jones’ case but were only allowed to provide written submissions for Rampersad’s consideration.
Jones’ lawsuit is one of several landmark cases filed by Caribbean LGBT activists challenging regional homophobic laws.
In 2016, Jamaican lawyer Maurice Tomlinson challenged T&T and Belize’s immigration laws which allow for refusal of entry to regional homosexuals visitors.
While the Caribbean Court of Justice (CCJ) dismissed his case, both Governments admitted that the laws were not enforced by their immigration officials.
Later that year, Belize’s Supreme Court struck down that country’s sodomy laws, after a case similar to Jones’ was filed by a local activist.
However, unlike T&T, Belize did not have a saving clause protecting its legislation from review.
Source: www.guardian.co.tt (Derek Achong)