Jason Jones v The Attorney General and The Equal Opportunity Commission, The Trinidad and Tobago Council of Evangelical Churches, The Sanatan Dharma Maha Sabha of Trinidad and Tobago
| Jurisdiction | Trinidad & Tobago |
| Judge | Rampersad, J. |
| Judgment Date | 12 April 2018 |
| Neutral Citation | TT 2018 HC 137 |
| Docket Number | CV2017-00720 |
| Court | High Court (Trinidad and Tobago) |
| Date | 12 April 2018 |
High Court
Rampersad, J.
CV2017-00720
Claimant: Richard Drabble QC leading Rishi P. A. Dass instructed by Antonio Emmanuel.
Defendant: Fyard Hosein SC leading Keisha Prosper instructed by Lesley Almarales.
Constitutional Law - Right to liberty — Equality before the law — Respect for private and family life — Freedom of thought and expression — Whether the State had the constitutional authority to criminalise sexual relations between consenting adults.
By this action, the court has been asked to determine whether the State has the constitutional authority to criminalise sexual relations between consenting adults. Sexual relations between persons of the same sex constitute a criminal offence by virtue of sections 13 and 16 of the Sexual Offences Act Chapter 11:28 (“the Act”).
The claimant petitioned the court, pursuant to section 14 of the Constitution, to strike down sections 13 and 16 of the Act and, by so doing, decriminalise consensual sexual relations between persons of the same sex. The defendant took the position that sections 13 and 16 of the Act constitute saved law by virtue of section 6 of the Constitution and, consequently, are saved from challenge. Alternatively, it was argued that even if sections 13 and 16 of the Act were not saved law, section 13 of the Constitution was applicable and that the claimant failed to prove that the sections were not reasonably justifiable in a society that has a proper respect for the rights and freedoms of the individual.
This court considered the numerous authorities submitted by the parties hereto outlined in the appendix. The court considered the history of the impugned sections and the applicable principles and tests to be applied to constitutional challenges in this jurisdiction together with persuasive authorities in other jurisdictions.
After careful consideration this court came to the following conclusions:
4.1. Sections 13 and 16 are not saved by section 6 of the Constitution and are open to challenge;
4.2. The case fell to be determined on an application of section 13 of the Constitution;
4.3. Sections 13 and 16 of the Act violate the claimant's fundamental rights, especially his right to respect for his private and family life;
4.4. Sections 13 and 16 of the Act have been proven not to be reasonably justifiable in a society that has a proper respect for the rights and freedoms of the individual.
It was not disputed that the claimant is an adult male who is openly homosexual. He is a citizen of this country by birth but is currently resident in London and habitually visits this country from time to time. According to the claimant, the impugned sections violate his constitutional rights by forcing him to either express his sexual orientation and risk conviction or forego consensual sexual relationships with another male partner. The claimant has thus asked the court to strike down the impugned sections as it was observed that no heterosexual male in this country is forced into making such a decision.
Section 13 of the Act creates the criminal offence of buggery for which a person is liable on conviction to imprisonment for twenty-five years. Buggery is thereafter defined as sexual intercourse per anum by a male person with a male person or by a male person with a female person.
Section 16 of the Act stipulates that a person is liable to imprisonment for five years if they commit an act of serious indecency. An act of serious indecency is simply an act, other than sexual intercourse (whether natural or unnatural), by a person involving the use of the genital organ for the purpose of arousing or gratifying sexual desire. Section 16 goes on to exempt any such acts, conducted in private, by three classes of persons being either consenting adults of the opposite sex or children. Persons of the same sex who engage in such acts, even in private, are not exempted and as such may be liable to imprisonment if convicted.
In these instances, with respect to both of these sections, consent cannot be used as a defence.
The claimant seeks a declaration that sections 13 and 16 of the Act are unconstitutional, illegal, null, void, invalid and are of no effect to the extent that these laws criminalise any acts constituting consensual sexual conduct between adults. Alternatively, the claimant also seeks a declaration that:
9.1. Section 4(a): the right of the individual to liberty and security of the person and the right not to be deprived thereof except by due process of law;
9.2. Section 4(b): the right of the individual to equality before the law and protection of the law;
93. Section 4(c): the right of the individual to respect for his private and family life; and
9.4. Section 4(i): the right to freedom of thought and expression;
The claimant also sought a declaration that sections 13 and 16 of the Act contravene section 5(2)(b) of the Constitution, which prohibits Parliament from imposing or authorising the imposition of cruel and unusual treatment or punishment. The claimant's position on relief pursuant to sections 4(a) and 5(2)(b) of the Constitution was however reserved to be articulated if the matter was to progress further.
The Act was passed by a three-fifths majority and provides, pursuant to section 13(1) of the Constitution, that it is to have effect even though inconsistent with sections 4 and 5 of the Constitution. That does not protect the Act from challenge but successful challenge is dependent on a finding that the Act is not reasonably justifiable in a society that has a proper respect for the rights and freedoms of the individual. The defendant however asserted that the Act was saved from challenge as it is an enactment that alters an existing law but does not derogate from any fundamental right guaranteed by the Constitution in a manner in which or to an extent to which the existing law did not previously derogate from that right.
The issues for the court's determination were thus:
12.1. Whether the case fell to be determined on an application of section 6 or section 13 of the Constitution. This required an analysis of whether the impugned sections are saved law;
12.2. If the impugned sections do not amount to saved law and the case fell to be determined pursuant to section 13 of the Constitution, this court then had to consider two issues:
12.2.1. Whether or not there was a violation of the claimant's fundamental rights; and
12.2.2. If yes, whether the impugned sections were reasonably justifiable; and
12.3. What relief, if any, the claimant should be granted.
From the onset, because of the nature of the criminalised conduct, numerous parties expressed an interest in being heard by the court. As aptly noted by counsel for the defendant, Trinidad and Tobago is, and was, a secular state and as such this case could not be determined on the basis of religious belief. In this way, the defendant agreed with the claimant that the issues at hand are not moral or religious. The court unhesitatingly agreed with this position.
This is not a case about religious and moral beliefs but is one about the inalienable rights of a citizen under the Republican Constitution of Trinidad and Tobago; any citizen; all citizens. As discussed below, this is a case about the dignity of the person and not about the will of the majority or any religious debate. History has proven that the two do not always coincide. To my mind, religious debates are best left to be discussed and resolved in other quarters with persons who subscribe to those particular ideals and for the followers of those ideals to be convinced as to the religiousness, sanctity or morality of those ideals. In this case, the court has had to consider the dignity of the claimant and citizens like him in the Republic of Trinidad and Tobago in the context of whether his, and by extension, their rights under the Constitution are being validly impinged.
This court thus had sight of the submissions of the interested parties and, where applicable, considered the authorities presented but ultimately saw this as a legal issue with due consideration given to the religious arguments under the question of whether the sections were reasonably justifiable. It must be noted that there was no evidence in this matter from any party but the claimant.
Before proceeding to discuss this case, it is important to place the offences in their historical context.
The history of this Act was briefly discussed in the Indian High Court in the case of Naz Foundation v. Delhi and others [2009] 4 L.R.C. 838. In that case, Shah, C.J. stated the following at paragraph 2 et al:
“HISTORY OF THE LEGISLATION
[2] At the core of the controversy involved here is the penal provision of s. 377 of the IPC, which criminalises sex other than heterosexual penile-vaginal. The legislative history of the subject indicates that the first records of sodomy as a crime at common law in England were chronicled in Fleta (1290) and later in Britton (1300). Both texts prescribed that sodomites should be burnt alive. Acts of sodomy later became penalised by hanging under the Buggery Act, 1533 which was re-enacted in 1563 by Queen Elizabeth I, after which it became the charter for the subsequent criminalisation of sodomy in the British colonies. Oral-genital sexual acts were later removed from the definition of buggery in 1817. And in 1861 the death penalty for...
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