The Court of Ap­peal has over­turned a judge's de­ci­sion to up­hold a nov­el con­sti­tu­tion­al chal­lenge over this coun­try's ho­mo­pho­bic bug­gery and se­ri­ous in­de­cen­cy laws.

It was a split de­ci­sion with Ap­pel­late Judges Nolan Bereaux and Char­maine Pem­ber­ton sid­ing with the State's ap­peal in the land­mark case brought by LGBTQI+ ac­tivist Ja­son Jones.

Jus­tice of Ap­peal Vasheist Kokaram de­liv­ered a dis­sent­ing judg­ment sup­port­ing the ini­tial rul­ing in the case by High Court Judge Devin­dra Ram­per­sad in 2018.

The ma­jor­i­ty agreed that Sec­tions 13 and 16 of the Sex­u­al Of­fences Act were un­con­sti­tu­tion­al. How­ev­er, they found that even with­out these laws, such acts were still pro­hib­it­ed un­der colo­nial-era leg­is­la­tion. As a re­sult, they struck down the 25-year sen­tence for bug­gery un­der Sec­tion 13, rul­ing that the orig­i­nal five-year penal­ty should ap­ply. They al­so ruled that ex­emp­tions from pros­e­cu­tion un­der Sec­tion 16, which ex­clude ho­mo­sex­u­als, should no longer stand.

Jus­tice Bereaux ac­knowl­edged that the rul­ing may be dif­fi­cult for some to ac­cept but em­pha­sised, "As un­palat­able as that may be, that is the ef­fect of Sec­tion 6(2) of the Con­sti­tu­tion."

He left it up to Par­lia­ment to step in to ad­dress the is­sue of re­peal­ing the pro­vi­sions. 

"It is an emo­tive is­sue which en­gages vi­brant dis­cus­sion in the court of pub­lic opin­ion." He added, "Judges can­not change the law. We give ef­fect to Par­lia­ment's in­ten­tion."

His rul­ing, sup­port­ed by Jus­tice Pem­ber­ton, ar­gued that the "sav­ings clause" in the Con­sti­tu­tion pro­tects colo­nial-era laws from le­gal chal­lenges. He not­ed that when Par­lia­ment passed the Sex­u­al Of­fences Act in 1986, it re­pealed and re-en­act­ed parts of the 1925 Of­fences Against the Per­son Act, which crim­i­nalised bug­gery and se­ri­ous in­de­cen­cy. 

He found that the new­er leg­is­la­tion fur­ther in­fringed con­sti­tu­tion­al rights by dis­crim­i­nat­ing against ho­mo­sex­u­al men in defin­ing that bug­gery is anal in­ter­course be­tween two men or a man and a woman and ex­clud­ing them from groups of in­di­vid­u­als such as het­ro­sex­u­al cou­ples, whose pri­vate ac­tiv­i­ties are not cov­ered by se­ri­ous in­de­cen­cy.

Jus­tice Bereaux ques­tioned the need for these laws, not­ing that he could not find a sin­gle case where con­sent­ing adults were pros­e­cut­ed for such acts. "I can see no ben­e­fit to the pub­lic in­ter­est in the crim­i­nal­is­ing of be­hav­iours which are large­ly un­de­tectable and are un­de­tect­ed," he said, adding, "The of­fences and penal­ties im­posed are large­ly an emp­ty fu­til­i­ty."

Fol­low­ing the rul­ing, ac­tivist Ja­son Jones an­nounced plans to ap­peal to the Privy Coun­cil. In a Face­book post, he said, "I will be ex­er­cis­ing my right of ap­peal and tak­ing this mat­ter to the Privy Coun­cil which again is an enor­mous anom­aly and mock­ery of our In­de­pen­dence that a British Court will make the fi­nal de­ci­sion in this mat­ter."

Jones al­so crit­i­cised the con­tin­ued use of the con­sti­tu­tion­al sav­ings clause, say­ing, "How on earth can Jus­tice Bereaux and Pem­ber­ton up­hold BRITISH Colo­nial Law in our Re­pub­li­can Courts us­ing the ‘sav­ings clause’ which was al­so shoved in­to our new­ly In­de­pen­dent Con­sti­tu­tion by the British?" He ar­gued that it was orig­i­nal­ly meant on­ly for a smooth tran­si­tion of pow­er and has no place in a mod­ern democ­ra­cy. "The sav­ings clause has no place in a 21st Cen­tu­ry democ­ra­cy," he said, adding, "The Gov­ern­ment of T&T and our Par­lia­ment are derelict in their du­ties by not re­mov­ing it so many years af­ter we be­came a Re­pub­lic in 1976."