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Casting off chains of shame, fear, inequality
An attuned ear hears a shackle when it falls. It’s a surreal sound, when an instrument of inhumanity hits the ground broken, clanging with its iron weight of history. Instinctively listen for the heart-piercing exultations of emotion that echo out powerfully. Also be stopped still by a black hole of quiet horror that you may yet again hear that shackle clink close around a human body.
If the pores on your skin raised, as did mine when I heard Justice Devindra Rampersad’s judgment on Thursday, it’s because I never anticipated that a shackle’s fall could sound and feel like the force of a supernova when it collapses, its vibration sheer disintegrating your heart, leaving you in breathless tremors and shaking tears.
The boldness of the judgment and the interval of freedom it created for the first time in hundreds of years, like a slash in colonial space-time continuum, can’t be anything but celebrated.
There are thousands of bodies in the nation which had been existing in fear, shame and silence and which, for the first time, felt included, protected and free. It is like the future time travelled and arrived to rock the vibrational field of the present, in a way so many citizens dared to dream, but despaired they would live to see.
Justice Rampersad’s judgment in Jones v TT concludes that the sections of the Sexual Offences Act, which criminalise buggery, or acts of anal sex, and same-sex genital touching are unconstitutional. He held that the “savings clause”, which retains the legality of colonial law despite our republican status, didn’t apply. This is because, in 1986, the Sexual Offences Act was repealed and “replaced”, thus creating new, post 1976 law.
Also, new law was created with the unprecedented extension of penalties for buggery from five years to 25 years and creation of a new prohibition, titled “serious indecency” and explicitly meant to criminalise lesbianism for the first time (by legislating that only men could have sexual access to women). In other words, this is new law, not simply a re-enactment and continuity from 1925.
Second, he argued that even if the savings clause was to hold, its intention is to continue and preserve protections of citizens’ rights in the move from colonial subjection to independent nationhood, not deny rights, discriminate or victimise. In this case, relying on the savings clause as justification goes against its spirit.
Additionally, he agreed that Jason Jones’ right to privacy was denied, observing that such privacy had not been conceptualised in early colonial law, but was now an accepted ideal. Use of the savings clause to deny that right again defies its intention.
Regarding the Act itself, its violation of Sections 4 and 5 of the constitution were already acknowledged by parliament in 1986. It is possible to infringe upon individuals’ constitutional rights, under Section 13 of the constitution, but the burden is on the parliament to fully justify its necessity, which it has not done. Passage of legislation by 3/5 majority, however procedurally legitimate, isn’t enough.
Religious or majority view and public opinion isn’t enough. Political expediency is far short of enough in the face of signed international conventions and global and liberalising standards of dignity, decency, equality and human rights. Claiming parliamentary prerogative isn’t enough, or might be enough in Britain where no constitution exists so parliamentary law is highest authority, but not in Trinidad and Tobago where the constitution should be supreme.
In other words, Jah bless our republican status and the possibilities for future-facing Caribbean jurisprudence. Why rely on British law when we have our own constitution? Why still carry habits of prisoners when we are freed from such imprisonment? Without the savings clause as a defence, the 1986 Act was always unconstitutional and unjustified, and unreasonably and arbitrarily denied rights to privacy, family, intimacy and equality for all citizens and couples. Its legitimacy was founded on its own fiction and presumptions, like the emperor with no clothes.
To write that race, colour, gender, age or sexual orientation is not all that encompasses a person’s soul nor their value to society or themselves is to wield something other than the master’s tools to dismantle the master’s house. This is the ultimate dream of Caribbean emancipation.
For this to occur in real life and in our generation is overwhelmingly beautiful, and feels cosmically huge. On appeal, we hope the disturbing metallic edge of manacles re-clasped on those who call for our love is something we do not hear. To them, do not turn a deaf ear.
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