Privy Council rules in favour of gay man who challenged Trinidad's buggery laws

LONDON, CMC – The London-based Privy Council Tuesday ruled “unanimously” in favour of Jason Jones, who challenged laws criminalising consensual same-sex relations between adults in Trinidad and Tobago.

In a statement issued before the Privy Council hearing, Jones had said he was confident the country’s highest appellate court would uphold his claim, saying: “The Privy Council will never uphold a 500-year-old homophobic piece of British law that goes against the rights of the individual! Not in 2026! I’m going to win”.

Jones, 62, who was born in Trinidad and Tobago and now lives in Britain, welcomed the ruling but said it did not address wider issues of “human rights and equality for LGBTQ+ people which have been denied using British colonial era laws across the Commonwealth and beyond”.

Former Trinidad and Tobago attorney general Anand Ramlogan SC, who represented Jones, said the judgment was a “landmark victory for gay rights, equal dignity and respect for private and family life in Trinidad and Tobago”.

Jones, a gay man, had sought a declaration that sections 13 and 16 of the Sexual Offences Act 1986 infringe his fundamental rights under the Trinidad and Tobago Constitution.

Section 13 of the Act prohibits “buggery”, while Section 16 prohibits “sex acts” other than sexual intercourse.

Section 16 also makes an exception to this prohibition for sex acts carried out in private between a man and a woman who are both over the age of 16 and consent to the act.

Jones sought a declaration that sections 13 and 16 of the Act are unconstitutional, arguing that these sections infringe a number of his fundamental rights and freedoms, especially his right to respect for his private and family life.

The High Court held that sections 13 and 16 of the Act were unconstitutional, finding that Jones’s fundamental rights under section 4(c) of the Constitution were violated by sections 13 and 16 of the 1986 Act; those provisions were not immunised by section 6 of the Constitution from a challenge based on those rights; and nor were those provisions immunised from such a challenge by section 13 of the Constitution, because Jones had shown that they were not reasonably justifiable.

But, by a majority, the Court of Appeal allowed the Attorney General’s appeal to a material degree in relation to his argument based on section 6(2) of the Constitution, to the extent that sections 13 and 16 of the 1986 Act reflected the law in existence when the Constitution came into force.

However, the Court of Appeal unanimously held that, insofar as those provisions went beyond existing law when the Constitution came into force, they were not reasonably justifiable within the meaning of the proviso and were to that extent incompatible with Jones’s fundamental rights and therefore, to that extent, had to be disapplied.

Jones appealed to the Judicial Committee of the Privy Council in relation to the Court of Appeal’s ruling based on section 6 of the Constitution.

The Attorney General did not appeal against the disapplication of sections 13 and 16 of the 1986 Act as ordered by the Court of Appeal but cross-appealed to contend that the Court of Appeal’s order to confirm the validity of those provisions to a material degree should also be upheld by reference to section 13 of the Constitution, maintaining that Jones had failed to show that the provisions were, to that extent, not reasonably justifiable according to the test in the proviso.

But the Privy Council unanimously allowed Jones’s appeal and dismissed the Attorney General’s cross-appeal.

It held that sections 13 and 16 of the 1986 Act are not protected, as existing law, by section 6 of the Constitution, nor are they protected to any extent by virtue of section 13 of the Constitution, because Jones has shown that they are not reasonably justifiable according to the test in the proviso.

In outlining the reasons for its ruling, the Privy Council said that under section 6(1) of the Constitution, laws which existed immediately before the Constitution came into force in 1976 are protected from a fundamental rights challenge.

The same protection from a challenge based on fundamental constitutional rights applies to subsequent legislation which repeals and re-enacts existing law with modifications: section 6(2) of the Constitution, the Law Lords said.

The court said it is common ground that sections 13 and 16 of the 1986 Act do not fall within the meaning of existing law in section 6(1) of the Constitution and, with respect to section 6(2), the Court of Appeal erred in its finding that sections 13 and 16 of the 1986 Act were protected as laws which merely repealed and re-enacted existing law with modifications.

The Privy Council said, rather, those provisions constituted new law and were therefore not immunised from a challenge based on the fundamental rights in section 4 of the Constitution. “The Judicial Committee holds that constitutional provisions which immunise old laws from challenges based on fundamental constitutional rights should be interpreted narrowly so as not to protect large areas of old law from constitutional scrutiny even after Parliament has comprehensively reviewed and sought to modernise them.”

The Privy Council said that the 1986 Act as a whole reflected Parliament’s assessment in 1986 of the whole of the law of sexual offences in light of the circumstances at that time and was a new and comprehensive regime for Trinidad and Tobago.

The Law Lords said the correct categorisation of the 1986 Act is that it is new law enacted after the Constitution came into force and so is not made exempt by section 6(2) of the Constitution from a challenge based on the fundamental constitutional rights in section 4 of the Constitution.

Section 13 of the Constitution permits Parliament to pass legislation which is inconsistent with fundamental rights if certain legislative conditions are met. The 1986 Act was passed into law using the correct procedural conditions as specified in section 13. However, by virtue of the proviso, such legislation will not be protected from a challenge based on the fundamental constitutional rights in section 4 where it is shown not to be reasonably justifiable in a society that has a proper respect for the rights and freedoms of the individual.

The Privy Council said that the Attorney General’s contention that the question of whether sections 13 and 16 of the 1986 Act were not reasonably justifiable according to the test in the proviso should be assessed according to the circumstances which existed when the legislation was enacted in 1986 could not be accepted.

“The relevant time for that assessment is when the rights of the individual bringing the challenge are in issue and the question of justifiability is before the court. In the assessment of whether sections 13 and 16 of the 1986 Act meet the reasonably justifiable standard in the proviso, the rights and interests of Mr Jones which are at stake involve a particularly important facet of his existence and identity since the ability to form an intimate and loving relationship with another person lies at the core of the right to private and family life.”

The Law Lords said that the Constitution affirms the dignity of the human person and the importance of respect for family life.

“The criminalisation of private, consensual same-sex relations interferes with a fundamental aspect of Mr Jones’s life and identity.”

They said that for sections 13 and 16 of the 1986 Act to be immunised by section 13 of the Constitution from a challenge based on the fundamental constitutional rights in section 4, in light of the test in the proviso, the Attorney General would need to demonstrate that the interference with Jones’s rights was in furtherance of a legitimate aim.

“To that end, the Attorney General argued that sections 13 and 16 of the 1986 Act reflected earlier laws which were traditional and of long standing. However, in order to justify a law on that basis, evidence would be required to explain the strength of the tradition and its consistency with prevailing societal values.

“No such evidence was put forward by the Attorney General. In any event, the interference with the most intimate aspects of Mr Jones’s private life is too severe for the relevant provisions to be considered as striking a fair balance and to be reasonably justifiable according to the test in the proviso,” the Law Lords noted.

The Privy Council therefore agrees with the High Court and the Court of Appeal that sections 13 and 16 of the 1986 Act are not reasonably justifiable in a society which has a proper respect for the rights and freedoms of the individual.

“The Judicial Committee will receive further written submissions from the parties before making its final order as to any modifications to sections 13 and 16 of the 1986 Act to ensure their compatibility with Mr Jones’s fundamental constitutional rights in section 4 of the Constitution.

“However, the Judicial Committee’s provisional view is that the order made by the judge in the High Court should be upheld,” it added.

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