On March 25, Trinidad and Tobago’s Court of Appeal overturned a High Court ruling that the country’s colonial-era “Buggery and Serious Indecency laws” are unconstitutional. The decision brought worldwide scrutiny and criticisms about backsliding human rights and what many rights groups deem the “re-criminalization of homosexuality.”

The Court of Appeal’s reasoning in the decision is more complex than media depict, and is based on the colonial-era Savings Law Clause. The clause, found in Section 6 of the country’s Constitution, is present in many other former British colonies’ constitutions. It is a provision that protects pre-independence laws from challenge, even on human rights grounds. The clause was initially intended to assist countries’ transition to independence following colonial rule and prevent a legal vacuum in constitutions. However, it also constrains the exercise of independent Caribbean nations’ self-determination and progression in human rights.

There are two types of savings law clauses: one which denies “judicial review of punishments or treatment authorised by any law prior to the coming into effect of the Constitution,” and another which is more preclusive and protects “all pre-independence or colonial law from constitutional challenge,” therefore immunizing colonial law. This latter clause is found in the constitutions of Jamaica, Trinidad and Tobago, Guyana, The Bahamas, Belize, and Barbados.

The claimant in Jones v AG of Trinidad and Tobago, which challenged Sections 13 and 16 of the Sexual Offences Act, argued that the provisions disproportionately impacted same-sex couples in the country and that they infringed on an individual’s right to private life and family life in a democratic society.

Section 13 of  the Sexual Offences Act criminalizes the act of both heterosexual and homosexual anal intercourse:

(1) A person who commits the offence of buggery is liable on conviction to imprisonment for twenty-five years.

(2) In this section, “buggery” means sexual intercourse per anum by a male person with a male person or by a male person with a female person.

Section 16 criminalizes any act of “serious indecency” between consenting adults but is not applicable to heterosexual spouses or heterosexual consenting couples of age 16 and above:

(1) A person who commits an act of serious indecency on or towards another is liable on conviction to imprisonment for five years.

(3) An act of “serious indecency” is an act, other than sexual intercourse (whether natural or unnatural), by a person involving the use of the genital organ for the purpose of arousing or gratifying sexual desire.

The High Court accepted the claimant’s argument and struck down both sections. Importantly, it held that these laws were not effectively “saved” by way of Section 6. This was a celebrated win globally and for many, marked a departure from outdated laws.

However, the Court of Appeal ruled that the High Court exercised judicial overreach in its decision.  While the appeal court did not necessarily agree with the provisions, it made it clear that Sections 13 and 16 were “saved” and maintained that the Savings Law Clause cannot be circumvented by courts. Justice Charmaine Pemberton told local media, “Judges cannot change the law. We give effect to Parliament’s intention. Buggery remains a crime in Trinidad and Tobago pursuant to section 13 of the Act, but is now punishable by a term of imprisonment of five years.”

The appeal court did make a statement by amending the provisions. Section 16 no longer applies to consenting adults regardless of sexual orientation, and the penalty for an offence under Section 13 has been reduced from 25 years to five.

A similar roadblock is met when it comes to other human rights issues, such as corporal and capital punishment. This is exacerbated further by the Judicial Committee of the Privy Council’s role as the final appellate authority for Trinidad and Tobago, while others turn to the Caribbean Court of Justice (CCJ), mitigating the impact of the clause.  The President of the CCJ emphasized that the conflicting views of the Privy Council and the CCJ have led to divergent jurisprudence and interpretation on the Savings Law Clause.  This was exemplified when Trinidad, the only English-speaking Caribbean country with a mandatory death penalty, moved to challenge the punishment and was prevented by the Privy Council because of the Savings Law Clause.

Lord Hodge of the Privy Council ruled that the death penalty was not unconstitutional, and explained that the Savings Law Clause “insulated all laws, in existence before August 1, 1976, including the mandatory death penalty, from being declared unconstitutional.” Like the Court of Appeal, he outlined the Parliament’s role in updating its laws to adhere to changing societal values and that the original function of the Savings Law Clause was to assist newly independent Caribbean nations in their transition periods. Countries like Belize have taken the approach of limiting the Clause to five years post-independence.

While the Savings Law Clause has stunted progression for Caribbean states, including Trinidad and Tobago, the failure of Parliament to act limits the judiciary’s ability to modernize rights protections. The onus falls on Parliament as a sovereign authority to amend and repeal outdated colonial laws that are now incompatible with modern society and human rights. Members of the judiciary have also outlined that Trinidad should instate the CCJ as its final appellate court to further protect its values and independence from outdated colonial influence.