- Colours Caribbean along with the International Lesbian and Gay Association–North America and Caribbean (ILGA-NAC), the United Belize Advocacy Movement (UniBAM), Out Bermuda and Silver Lining Foundation intervened as third party in Jason Jones’s appeal and welcome and celebrate the Privy Council’s decision. We are honoured to stand in solidarity with Jason, his legal team and everyone whose life will be positively affected by this decision.
- Jason’s victory marks a historic moment for the Caribbean: it ends the criminalisation of sexual intimacy between two consenting adults of the same sex in Trinidad and Tobago and sets a precedent for the remaining four jurisdictions still criminalising in the region to repeal those laws. Yet this judgment also highlights the enduring harm caused by colonial laws. The Privy Council has maintained its interpretation of the savings clause, leaving such laws shielded from constitutional challenge, however inhuman or degrading they may be.
- At the heart of today’s decision is that criminalising sexual intimacy between two consenting adults of the same sex cannot be reasonably justified in a democratic society. That position was shared by all the Caribbean judges who heard and decided this case in Trinidad and Tobago over the past eight years; the Privy Council just confirmed so. At paragraph 69, the Privy Council unanimously concluded:
- The appeal gave the Privy Council an opportunity to reconsider its interpretation of the savings clause in the Trinidad and Tobago Constitution. That clause shields laws already in force when the Constitution came into effect from constitutional challenge. Many are inherited from the colonial era and conflict directly with human dignity and fundamental rights, particularly those of minorities such as the LGBTQI+ community. This is one reason why the Caribbean Court of Justice departed from the Privy Council’s interpretation almost a decade ago in relation to people living in Barbados, St Lucia, Belize, Dominica and Guyana.
- The Privy Council did not use this case to align its approach with the Caribbean Court of Justice. A wider problem remains: 27 colonial laws protected by the savings clause still discriminate against LGBTQI+ people in Trinidad and Tobago (according to the former Attorney General F Al Rawi). Many more laws violate the rights of other vulnerable groups.
- We are also concerned that the decision gives the government of Trinidad and Tobago a legal blueprint for continuing to harm vulnerable groups without constitutional scrutiny. Our concerns are twofold:
- A missed opportunity to strengthen constitutional protection. The Privy Council narrowed the savings clause’s application regarding modifications of existing laws but fell short of revisiting its jurisprudence in a responsible, measured way consistent with the Caribbean Court of Justice. In our view, this approach fails to provide the protection warranted by its own recognition, at paragraph 69, of Mr Jones’s constitutionally protected family life.
- A route to preserving harmful laws. The judgment provides the government with a means, should it choose to use it, of perpetuating state-inflicted harm against vulnerable groups.
- We do not diminish the significance of ending criminalisation. But recognising that same-sex couples have a constitutionally protected family life should be accompanied by meaningful protection for that family life. We are therefore disappointed that the Privy Council did not seize the opportunity to revisit the savings clause and limit its application to laws that harm vulnerable minorities as requested by the interveners.
Recognition of dignity, intimacy and family life
“The ability to form a deep connection with another person through an intimate and loving relationship is a vital interest for all human beings. …. In so far as Mr Jones is in a loving relationship with another man, Mr Jones clearly has a family life which engages the protection of the Constitution.”