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On April 12, 2018, courtroom POS 09 in the Hall of Justice in Port of Spain was jam-packed with interested parties eager to hear the outcome of a highly scrutinised court case – Jason Jones vs. the Attorney General of Trinidad and Tobago. Jones, a Trinidad-born gay rights advocate who lives in the United Kingdom, was challenging Sections 13 and 16 of the country's Sexual Offences Act (Chapter 11:28), which criminalise anal sex between consenting adults.
High Court Judge Devindra Rampersad's ruling that the law was “unconstitutional” was met with both celebration and criticism. The Office of the Attorney General announced soon thereafter that it would file an appeal against Justice Rampersad's findings. Almost seven years later, on March 25, 2025, a local appeal court overturned the decision, although the maximum sentence associated with the offence has reportedly been reduced from 25 to five years.
Two out of three appeal court members — Justices of Appeal Nolan Bereaux and Charmaine Pemberton — found that Sections 13 and 16 of the Act, which Justice Rampersad ruled contravened LGBTQ+ activist Jason Jones’ constitutional right to equality and protection under the law, must remain on the statute books on the grounds that they are “saved law.”
Savings law clauses refer to laws that were enacted before colonised countries gained independence and adopted new constitutions, but were “saved” to remain in force even after such constitutional changes. It is a fairly common concept in Commonwealth legal systems, where restrictive and outdated colonial-era laws are carried over into post-independence legal frameworks.
Attorney Deniece Beaumont Walters, who practises in both Jamaica and the United Kingdom, explained in a blog post that initially, “these clauses had the function of providing continuity of the law during a transitionary period.” Today, however, they “have the result of protecting any law which was valid before the date of independence from being struck down as unconstitutional”:
In other words, if a law existed prior to the date of independence, then that law remains valid even if it is in breach of constitutional safeguards. The result of this is that savings law clauses freeze the law as of the date of independence, so that even if pre-independence law has been overtaken by human rights developments, the law will remain valid thus restraining the legal evolution of the Caribbean.
This category of laws is often protected from being challenged as unconstitutional, even if the legislation conflicts with human rights provisions in newer constitutions. This has been particularly controversial in cases related to the death penalty, LGBTQ+ rights, and other areas where older laws clash with modern legal and social norms.
At the time of publishing, the appeal judgment was not yet available on the Judiciary of Trinidad and Tobago's website, but one local attorney agreed to speak with Global Voices in general terms, under the condition of anonymity.
“Without having read the details of the judgment,” the source said, “any change in the law rests with parliament. A savings law clause means that the legislation is frozen until repealed, so the law itself, no matter how draconian, has to be changed by government representatives; the law lords don't have the power.”
Consulting the Hansard of February 5, 2019, then Attorney General Faris Al-Rawi, in responding to a question about why parliamentary discussions around the Sexual Offences Act were “leaving buggery untouched,” said that the law had been amended “pursuant to Justice Rampersad’s decision in the Jason Jones matter”:
[T]he law as it stands, Section 13, has in fact been amended and that is in the course of the courts right now […] it would have been infra dig for me to amend that law whilst it has been amended and is under appeal only because of the need to clarify the law. And the further reason is that law in relation to buggery finds itself in 26 other laws; the umpteen laws across Trinidad and Tobago from the Immigration Act come down. So, I did not want pull one thread whilst the law had to be settled.
In the most recent Hansard record of debate around the Sexual Offences Act, dated September 13, 2019, Minister Fitzgerald Hinds said, with regard to the buggery clause, “[T]he matter is on appeal and the matter is still unsettled.” Other amendments to the Act were proclaimed and came into effect on January 31, 2020.
Noting that “so many of our laws are antiquated and still pre-independence,” the attorney, who asked not to be named, explained that the Appeal Court judges must operate within the confines of the law and can only make a legal determination based on those parameters: “From a human rights perspective, they may hold their own views, but from a legal perspective — and quite rightly so — they are duty-bound to uphold the law.”
As Beauont Walters detailed in her blog post, citing the “cautious” 2004 Privy Council ruling in a death penalty case dubbed “the Boyce trilogy,” it “confirmed that when interpreting the Constitutions of the Commonwealth, Caribbean judges were bound by the savings law clauses and could not rely on judicial developments elsewhere when determining the constitutionality of pre-independence laws notwithstanding changing judicial attitudes toward such laws”:
The particular savings clauses in the Constitutions of Trinidad and Tobago and Barbados protected the mandatory penalty from constitutional challenge. Lord Hoffman, despite his views in Pratt v Morgan, described the general savings law clauses as impassable barriers to the judicial review of capital punishment on human rights grounds. The minority in Boyce and Matthews on the other hand, would have quashed the mandatory death penalty in the two countries.
Upon hearing the news, Jones took to social media to make a statement:
It is with the greatest distress I received this T&T Court of Appeal judgement today. As an LGBTQ+ citizen of Trinidad and Tobago, this regressive judgement has ripped up my contract as a citizen of T&T and again makes me an unapprehended criminal in the eyes of the Law.
Jones also addressed the savings law, which he said was “shoved into our newly independent Constitution by the British […] to be a tool used for the smooth transition of power from our Colonial slave masters [into] our own Black hands in 1962:
What is truly frustrating, is that we, as a post-Colonial REPUBLICAN Nation, still hide behind the ‘savings law clause,’ Section 6, of our Constitution in order to do the dirty work of homophobic bigotry.
Let me be clear, for our Appeal Court Judges to overturn one of the most progressive human rights judgements in recent history is nothing short of diabolical. […] The savings clause has no place in a 21st Century democracy and the [government of Trinidad and Tobago] and our Parliament are derelict in their duties by not removing it so many years after we became a Republic in 1976.
Members of the LGBTQ+ community, region-wide, have suffered greatly in an oppressive and intolerant social climate that such laws have helped to nurture.
Announcing his intention to continue the fight, Jones 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.
There I hope justice will be done and these heinous discriminatory laws, a legacy of BRITISH COLONIALISM will be removed by the British Courts!
As with several other regional territories, the UK Privy Council remains Trinidad and Tobago's highest court of appeal.
In July 2010, years before Jones challenged the colonial-era law in Trinidad and Tobago, Caleb Orozco, founder of the United Belize Advocacy Movement (UNIBAM), successfully challenged Section 53 of Belize's Criminal Code, which deemed anal sex illegal and punishable by 10 years’ imprisonment. The landmark ruling in Orozco's favour is widely considered to have paved the way for similar judgements to be handed down across the archipelago.
Delivering a final punch, Jones added, “I must remind my fellow citizens that Slavery was legal. Apartheid was legal. Child marriage was legal. Humanity cannot be judged by the majority.”
