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TERRENCE W FARRELL

THE COURT of Appeal judgement in the Jason Jones case, which challenges the constitutionality of sections 13 and 16 of the Sexual Offences Act, raises thorny issues of constitutional interpretation – the savings law clause, the proportionality test, and the appropriate test for reasonable justifiability in section 13 of the Constitution. Only the savings law clause, Section 6 of the 1976 Republican Constitution, is discussed here.
Bereaux JA provides a useful history of how the savings or existing law clause (section 3 of the Independence Constitution) came to take its current form (section 6) in the 1976 Republican Constitution. It had been instituted in order to preserve the corpus of colonial-era laws legislated before independence, but went further to immunise those laws from challenges for infringement of the fundamental rights and freedoms which had been enshrined in the Constitution.
Bereaux JA points out that the current section 6 differs radically from the original section 3 savings clause. He explains that the 1975 Court of Appeal decision in Trinidad Islandwide Cane Farmers’ Association Inc and Attorney General v Prakash Seereeram had declared the 1973 amendment to the Cess Act was not saved law, and that this decision had prompted the inclusion of sections 6(2) and 6(3) in the savings clause to "plug the loophole" which the decision in Seereram had exploited.
Sections 6(2) provides that if the alterations or modifications of the new law infringe the fundamental right to a greater extent than the existing law, the provisions of the existing law are to be substituted. Section 6(3) states that alteration includes repealing and re-enacting the colonial law with modifications or with different provisions.
In Jason Jones, Bereaux JA, with whom Pemberton JA agreed, argued that sections 13 and 16 of the 1986 Sexual Offences Act conformed to the definition of "alter" in section 6(3), even though the Sexual Offences Act made significant modifications, including some changes to the people to whom the laws of buggery and indecency applied, and instituted higher penalties for the offences, increased even further in the 2000 amendment.
On the basis of this finding, and even though they found that the legislation pursued no discernible legitimate aim and was not reasonably justifiable, the majority applied section 6(2) of the savings law clause and reset sections 13 and 16 of the Sexual Offences Act back to the provisions of the Offences Against the Person Act as promulgated in 1940, thereby reinstating a colonial law!
In his prolix, literary dissenting judgement, Kokaram JA was in no doubt that sections 13 and 16 of the Sexual Offences Act were not saved law, that the original provisions criminalising buggery and indecency had been repealed and replaced, and the modifications were not mere "tinkering" as Pemberton JA would have it.
The Privy Council will, in due course, either on Bereaux JA’s analysis or otherwise, decide whether sections 13 and 16 of the Sexual Offences Act are saved law in accordance with section 6(2) and 6(3) of the Constitution, or whether Kokaram JA is correct.
The majority in Jason Jones adopted the conservative position of the Privy Council in Chandler, that is, the court is a court of law (not of justice), and it is for Parliament to fix the problem of the patent injustices inflicted on citizens by the savings law clause, including, inter alia, the mandatory death penalty.
Ironically, Bereaux JA admits: “I can see no benefit to the public interest in criminalising of behaviours which are largely undetectable and are undetected. The offences and penalties imposed are largely an empty futility. They are not reasonably justifiable in a society that has a proper respect for the rights and freedoms of the individual.” But this is precisely what was legislated by a Parliament to which the Privy Council would have the courts give due deference!
Parenthetically, Chandler is touted as the unanimous decision of a nine-member panel upholding Matthew. But Matthew itself was a 5:4 decision overturning Roodal, and we now know, per Lord Millett, how Lord Hoffman contrived to secure the majority decision in Matthew.
It should be noted that the 2024 National Advisory Committee on Constitutional Reform, like the 1974 Wooding Constitution Commission before it, recommended the removal of the entire savings law clause.
The modified savings clause in the 1976 Republican Constitution was not the result of the work of the Wooding Commission but rather reflects the work of Sir Ellis Clarke, presumably responding to the wishes of then prime minister Eric Williams, who was not prepared to accept the Wooding Commission recommendations for constitutional reform. Besides removal of the savings law clause, the Wooding Commission had recommended, inter alia, proportional representation, a unicameral legislature, and directive principles of government.
Recently, the High Court in St Lucia declared unconstitutional sections 132 and 133 of its Criminal Code which criminalised adult sexual acts in private, joining Barbados, Belize, St Kitts and Nevis, Antigua and Barbuda, and Dominica which have all decriminalised same-sex intimacy in recent years.
In my commentary on Chandler, I opined that the Privy Council decision and the inaction of an unresponsible Parliament would leave our courts in "monkey pants" in dealing with saved laws. The majority in Jason Jones found themselves so attired and as Pemberton JA noted, fettered by our pernicious savings law clause when she would have preferred to follow the CCJ!
Rampersad J at first instance made mistakes and perhaps overreached, but neither he nor Kokaram JA allowed themselves to be so fettered. They refused to not just uphold, but actually reinstate an unjustifiable and unworkable colonial law. Better, I think, to let the "law lords" do that than we should do that to ourselves!
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