Peter Espeut | The culture wars continue

On November 10, the Judicial Committee of the United Kingdom Privy Council (UKPC) struck down sections 13 and 16 of the Trinidad and Tobago (T&T) Sexual Offences Act (SOA) 1986 that criminalise anal sex because they infringe the T&T Constitution of 1976.

Trinidadian ‘Gay Rights’ activist Jason Jones brought a constitutional action in the T&T High Court in 2018 to decriminalise consensual homosexual intercourse, and won. But the T&T government took the case to their Court of Appeal, which overturned that decision. Jones appealed to the UKPC and has eventually prevailed.

In reporting the judgment on November 11, The Gleaner carried a statement from Jamaican ‘Gay Rights’ activist Maurice Tomlinson, who brought a similar action in the Jamaican courts in 2015. The story began, “Gay-rights activist Maurice Tomlinson has expressed optimism about buggery law reform in Jamaica following the Judicial Committee of the Privy Council’s (JCPC) decision to decriminalise same-sex intimacy in Trinidad and Tobago”.

The Gleaner quotes Tomlinson: “This is a wonderful development not only for my case against Jamaica’s archaic anti-buggery law but also for regional human rights. One of the Caribbean’s final courts has struck down a vestige of our dark colonial past that kept our citizens in bondage”.

[By the way, I put “Gay Rights” in inverted commas because I do not believe that any such rights exist, certainly not in law. These claims are manufactured. Homosexuals have the same human rights as everybody else.]

I must immediately declare an interest: I filed an affidavit in 2014 (13 pages single-spaced) “IN RESPONSE TO AMENDED AFFIDAVIT OF JAVED JAGHAI”, a gay man who had brought a similar constitutional action to decriminalise buggery in Jamaica. I don’t know if there is any connection but, shortly thereafter, Jaghai withdrew his action.

I do not believe that Tomlinson’s case is active (it was similarly weak), but I am sure he will be encouraged by Jones’ success.

I have read the 34-page UKPC Jones judgment (download and read it for yourself) and, in my view (I am not a lawyer), I do not believe that Brother Maurice (or Brother Javed) has any reason for optimism. The Jamaican and Trinidad situations are quite different.

True: both the Trinidad and Jamaica constitutions have a “savings clause” which prevents constitutional challenges to laws in force at the time the constitutions were enacted. What clinched the case for Jones was that the Trinidad and Tobago Offences against the Persons Act (OAPA) 1925 was “repealed and replaced” by the Sexual Offences Act (SOA) 1986 instead of being “repealed and re-enacted”. The replacement legislation was not the same as the one before, and therefore could not be saved.

Let me quote from the judgment itself (Paragraph 51):

“The Board therefore concludes that Sections 13 and 16 of the SOA 1986 are not saved as existing law by Section 6 [of the T&T Constitution] . For the reasons we have given in paras 36-50 above, those provisions repealed and replaced Sections 60-62 of the OAPA 1925. They did not repeal and re-enact Sections 60-62 with modifications” [my emphasis ] .

Jamaica has made no changes whatsoever since Independence to the “buggery law” sections of our Offences against the Person Act (OAPA) 1864, and therefore the “savings clause” still applies.

Still, there are aspects of the judgment of the UKPC that are worrying.

Jones claimed that his rights under Section 4 of the T&T Constitution were breached, namely:

(b) the right of the individual to equality before the law and the protection of the law;

(c) the right of the individual to respect for his private and family life;

(i) freedom of thought and expression.

Listen to these arguments as to how Mr Jones’ constitutional rights were infringed:

“First, Mr Jones was unable to live his private life without the possibility of being branded a criminal. The SOA 1986, therefore, impinged on his right to respect for a private and family life”.

Scammers, thieves, and murderers will say that they are unable to live a private life without being branded criminals; therefore scamming, stealing and murder should all be decriminalised because they violate the constitutional rights of those doing those things. What nonsense! It is a circular argument. People who break the law have given up their right to a private life.

The right to privacy does not mean that you can break the law in private. Scammers who operate from the privacy of their bedrooms should not be able to claim any right to privacy.

“Secondly, those provisions disregarded Mr Jones’ human dignity, which included his ability to make autonomous decisions about whom to love; whom to live with; and with whom to make a family”.

Homosexual sex cannot lead to pregnancy and children. The family is a unit of production and reproduction. A gay couple may be a household, but not a family.

“Thirdly, Mr Jones was treated differently under the law from heterosexual citizens because of his sexual orientation. The criminal sanction also justified in the mind of others that his lifestyle was unnatural and that he had a lesser value than heterosexual individuals”.

This is childish reasoning. The honest and the dishonest are treated equally under the law, which punishes dishonesty. If you disobey the law, you will be punished. The dishonest cannot plead discrimination because they are punished while the honest go free. Homosexuals and heterosexuals are treated equally under the law.

“Finally, the sanction imposed affected Mr Jones’ ability freely to express himself and his thoughts in public. The SOA 1986, therefore, impinged on his right to freedom of thought and expression”.

Surely homosexuals, like everyone else, are free to think and express what they wish. You may not agree with what they say, but they can say it. Legalising buggery will not change what people think and say.

Only reason and logic will help us navigate these culture wars. Follow the science: No one is born gay. There is no gay gene. Something went wrong somewhere.

Rev Peter Espeut is dean of studies at St Michael’s Theological College. Send feedback to columns@gleanerjm.com