Analysis of the Court of Appeal’s Ruling in Jason Jones v The State of Trinidad and Tobago

 

Introduction

The Court of Appeal’s decision to uphold the criminalisation of anal sex between same-sex adults under the Sexual Offences Act 1986 (SOA 1986) is deeply flawed. The ruling ignores the fundamental rights enshrined in section 4 of the Constitution of Trinidad and Tobago and misapplies the savings clause in section 6. Furthermore, it disregards progressive jurisprudence from the Commonwealth, which has consistently favoured the recognition and protection of LGBTQ+ rights under modern human rights frameworks.

1. Violation of Express Constitutional Rights

Section 4 of the Trinidad and Tobago Constitution expressly guarantees fundamental human rights and freedoms, including:

• The right to liberty, security of the person, and enjoyment of property (s.4(a))
• The right to equality before the law and protection of the law (s.4(b))
• The right to respect for private and family life (s.4(c))
• The right to freedom of thought and expression (s.4(i))

The criminalisation of consensual same-sex acts violates these rights in several ways:

1. Privacy Rights (s.4(c)): By criminalising consensual sexual activity between adults, the state is interfering in private affairs without justification, contrary to established international norms (see Dudgeon v UK [1981] ECHR 7525/76).
2. Equality before the Law (s.4(b)): The law discriminates on the basis of sexual orientation, violating the principle of equality before the law (see Toonen v Australia, UNHRC CCPR/C/50/D/488/1992).
3. Personal Liberty (s.4(a)): The threat of criminal sanction restricts the liberty of LGBTQ+ individuals, treating them as second-class citizens in violation of fundamental rights.

2. Misapplication of the Savings Clause (s.6 of the Constitution)

The majority in the Court of Appeal placed undue reliance on the savings clause in section 6 of the Constitution, which was originally intended to preserve laws in the transitional period from colonial rule. However, modern Commonwealth jurisprudence has recognised that savings clauses cannot be used to shield discriminatory laws from scrutiny indefinitely.

In McEwan v Attorney General of Guyana [2018] CCJ 30 (AJ), the Caribbean Court of Justice (CCJ) held that even where a savings clause exists, laws must be interpreted in light of modern constitutional values. Similarly, in LGBT decriminalisation cases in Belize and India (Caleb Orozco v AG of Belize [2016] SC and Navtej Johar v Union of India [2018] SCC 135 SC), courts ruled that savings clauses cannot override fundamental rights. The Court of Appeal in Trinidad and Tobago failed to follow these precedents, thereby failing in its duty to protect fundamental human rights.

3. Inconsistency with the Doctrine of Constitutional Supremacy

The Constitution of Trinidad and Tobago is the supreme law, meaning that any law inconsistent with it is void to the extent of the inconsistency. Section 2 of the Constitution expressly provides:

"This Constitution is the supreme law of Trinidad and Tobago, and any other law that is inconsistent with this Constitution is void to the extent of the inconsistency."

By upholding SOA 1986 despite its clear inconsistency with section 4 rights, the Court of Appeal has failed to uphold constitutional supremacy. The High Court’s original ruling correctly identified that section 13 and section 16 of SOA 1986 were unconstitutional, and the appellate court erred in reversing this finding.

4. The Role of Parliament and Judicial Responsibility

The majority ruling asserted that judges cannot change the law and that reform is the responsibility of Parliament. This position is legally unsound. While Parliament has the power to legislate, the judiciary has the authority—and indeed the duty—to interpret the Constitution and strike down laws that violate fundamental rights (see Minister of Home Affairs v Fisher [1980] AC 319 and Matadeen v Pointu [1999] UKPC 66). Courts across the Commonwealth have exercised this power in cases concerning LGBTQ+ rights, including Nadan and McCoskar v State [2005] FJHC 500 (Fiji), where sodomy laws were struck down as unconstitutional.

5. The Problematic Inclusion of Religious Interests

The involvement of a religious body as an interested party in the litigation raises serious concerns about the separation of church and state. The Constitution guarantees freedom of religion but does not permit religious doctrine to dictate secular law. The ruling effectively imposes religious morality on all citizens, undermining the principle of neutrality in state governance (Reference re Same-Sex Marriage [2004] SCC 79).

Conclusion

The Court of Appeal’s decision is legally unsound and inconsistent with modern human rights jurisprudence. The ruling ignores express constitutional rights, misapplies the savings clause, contradicts the principle of constitutional supremacy, and abdicates judicial responsibility in favour of legislative inertia. The judgment should be challenged at the Privy Council or, failing that, repealed by Parliament to align Trinidad and Tobago’s laws with international human rights standards and constitutional principles.

Recommendation: Immediate legislative or judicial intervention is required to rectify this decision and ensure that all citizens enjoy equal protection under the law.

 

Delusion

 

Kamla Persad-Bissessar exhibits all the characteristics of a leader trapped in the delusion of her own indispensability. She clings to power despite mounting evidence that her leadership is a liability, not an asset. The resignations detailed in the article are not just isolated incidents; they are symptomatic of a deeper structural issue within the UNC: stagnation, disillusionment, and a refusal to evolve.

Bonhoeffer’s Stupidity in Action

As Dietrich Bonhoeffer posited, stupidity in politics is not about intelligence but about wilful ignorance and groupthink. Kamla’s response to mass resignations is a textbook example—she does not acknowledge the legitimate grievances of those leaving but instead labels them “traitors” and dismisses their actions as self-serving. This is a classic authoritarian tactic: deflect, demonise, and deny.

Her supporters—those who remain loyal despite the party’s evident decline—are similarly afflicted. They do not question why so many senior figures are abandoning ship. They do not ask why the UNC, once a formidable political force, has become a party people flee from rather than rally behind. Instead, they accept her excuses, reinforce her delusions, and attack those who dare to challenge her leadership.

Cult of Personality and Nostalgia

Kamla is trapped in nostalgia, constantly invoking the past rather than charting a new course for the future. Her leadership has long ceased to be about governance or effective opposition; it is now about self-preservation. She is no longer fighting to defeat the PNM—she is fighting to stay relevant.

Her attacks on those who resign are particularly telling. Rather than reflecting on why so many loyalists are leaving, she immediately assumes they are opportunists. This is not the behaviour of a leader confident in her vision; it is the paranoia of someone who knows deep down that her grip on power is slipping.

The Political Consequences

Kamla’s refusal to step aside has far-reaching consequences:

1. UNC is unelectable under her leadership. The general public sees the party as dysfunctional, reactionary, and out of touch.
2. The PNM remains in power. Instead of a strong opposition to challenge Rowley’s failures, we have a fragmented and ineffective UNC that cannot unify the electorate.
3. Talented people are leaving. The resignations indicate that many within the party realise it has no future under Kamla, but rather than transition to new leadership, the party is bleeding talent.
4. The party’s credibility is eroding. Each high-profile defection further undermines public confidence in the UNC as a viable alternative.

Comparison to the PNM’s Cult of Rowley

Much like Keith Rowley, Kamla has created a personality cult where criticism is met with hostility, and blind loyalty is rewarded. The difference is that Rowley’s cult is still in power, while Kamla’s is imploding.

Both leaders thrive on tribalism and fear-mongering, both refuse to acknowledge their failings, and both rely on political stupidity to maintain their support. The key distinction is that Rowley has state resources and incumbency on his side, whereas Kamla’s party is crumbling under the weight of its own contradictions.

Conclusion: A Party in Denial

Kamla is not leading the UNC—she is suffocating it. Every resignation, every defection, every lost election is a clear sign that she is the obstacle, not the solution. But rather than accept this, she doubles down on the same failed strategies, attacking those who leave instead of addressing why they are leaving.

This is Bonhoeffer’s stupidity in its purest form: a political movement that is incapable of self-reflection, trapped in the fantasy that loyalty to a failed leader is more important than winning elections. Until the UNC breaks free from Kamla’s grip, it will remain an irrelevant, self-sabotaging entity—allowing the PNM to rule unchallenged.

The Conflict Between Sections 76 and 80 of the Trinidad and Tobago Constitution and Its Broader Implications

The unfolding political situation in Trinidad and Tobago, where an outgoing Prime Minister (Dr Keith Rowley) is effectively handpicking his successor (Stuart Young) while retaining leadership of the governing party (PNM), raises serious constitutional, political, and democratic concerns. This issue is compounded by the fact that the President, Christine Kangaloo, was a recent member of the same political party and appointed by Dr Rowley himself, raising further questions about institutional neutrality.

At the heart of this issue is the constitutional tension between Sections 76 and 80, and the broader impact on governance, democracy, economic accountability, and public trust.

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1. The Constitutional Conflict: Sections 76 and 80

Section 76: Appointment of the Prime Minister

• Section 76(1) of the Constitution of Trinidad and Tobago states that the President must appoint as Prime Minister a Member of the House of Representatives who commands the support of the majority of members.
• Traditionally, this means the leader of the ruling party, but it does not specify that the Prime Minister can appoint their own successor while remaining leader of the party.
• The problem arises because Stuart Young has not faced the electorate as leader of the government and is instead being chosen internally.
• Given that Dr Rowley remains leader of the PNM, the real power structure remains unchanged.

Section 80: Presidential Discretion in Appointment

• Section 80(1) states that the President shall act “in accordance with the advice of the Cabinet or a Minister acting under the general authority of the Cabinet.”
• However, Section 80(2) allows the President discretion in certain matters, including the appointment of a Prime Minister when there is ambiguity about who commands a majority in Parliament.
• Given that the President was a PNM member and was appointed by Dr Rowley, her ability to exercise independent discretion is questionable.
• This raises a fundamental issue of constitutional impartiality—was President Kangaloo acting independently, or was she following directives from her political associates?

Key Constitutional Issue:

• If Dr Rowley remains PNM leader, and his successor is chosen by him and rubber-stamped by a President aligned with his party, does this violate the spirit of democracy?
• It effectively bypasses the electorate and avoids accountability, turning the Prime Minister’s office into a de facto appointment rather than an elected position.

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2. Political Implications: Erosion of Democracy and Institutional Integrity

Erosion of Democratic Legitimacy

• The entire Westminster system is built on the idea that the Prime Minister is accountable to Parliament and, ultimately, to the people.
• By handpicking a successor without an election, Dr Rowley is setting a precedent where the Prime Ministership becomes an internal party decision rather than a democratic process.
• A Prime Minister who has not faced the electorate lacks democratic legitimacy, particularly in a country where corruption and economic mismanagement are major concerns.

Collapse of Institutional Checks and Balances

• The President is supposed to act independently, but given her political background in the PNM, there is a perception of bias that weakens public trust in the office.
• The Cabinet’s rubber-stamping of Young’s appointment suggests that the Executive is operating without genuine scrutiny.
• The Opposition lacks the strength to counter this, leading to a situation where one party controls the Presidency, Parliament, and Prime Ministership without direct electoral validation.

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3. Social Consequences: Public Distrust and Disillusionment

Declining Trust in Government

• Trinidad and Tobago has a history of political tribalism, but this level of perceived undemocratic manoeuvring can significantly erode trust in institutions.
• People may start to view the political system as rigged—where elections don’t really matter because power is circulated within party elites rather than decided by the voters.
• A government that lacks legitimacy fuels social unrest, disengagement from voting, and increased scepticism towards political leadership.

Rise of Political Apathy or Radicalisation

• If citizens believe their votes don’t count, this could lead to a decline in voter participation—a dangerous outcome for any democracy.
• Alternatively, it could fuel more radical political movements that reject the current system altogether, leading to greater polarisation and potential social instability.

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4. Financial and Economic Ramifications: $3 Billion Unaccounted for and Continued Mismanagement

PNM’s Economic Track Record: Financial Mismanagement and Corruption

• The PNM has been in power for nearly a decade, presiding over widespread financial mismanagement.
• The Auditor General’s report revealed that $3 billion is unaccounted for, an issue that reached the Privy Council, yet there has been no accountability or resolution.
• The failure to address corruption and economic mismanagement weakens investor confidence and limits economic growth.

Appointment of a New PM Without a Mandate Exacerbates Economic Decline

• A Prime Minister who has not faced the electorate is unlikely to implement major reforms, as they lack a clear democratic mandate.
• Investors and international partners may lose confidence in the government, further weakening the country’s economy.
• Without electoral legitimacy, Young’s government would be more focused on maintaining internal party power than addressing real economic concerns such as inflation, employment, and energy-sector instability.

Burden on the Taxpayer

• If the UNC challenges this appointment in court, as they should, it will result in high legal costs borne by the taxpayer.
• More importantly, if the challenge is successful, it could trigger a constitutional crisis, requiring new elections or legislative reforms—both of which will cost the country millions more in public funds.

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5. The Need for Clearer Accountability: Avoiding "Prime Ministership by Theft"

Reforming the Appointment Process

• The current conflict between Sections 76 and 80 highlights the need for explicit constitutional reform to prevent similar occurrences in the future.
• A Prime Minister should not be able to appoint their own successor while retaining party leadership—this is fundamentally undemocratic.
• The President should be required to demonstrate clear evidence of parliamentary support before confirming a new Prime Minister.

Immediate Legal Action Is Necessary

• The UNC and civil society must challenge this appointment in court, forcing greater transparency in the process.
• Even if the legal challenge does not succeed in reversing the appointment, it sets a precedent that the electorate will not tolerate unchecked power.

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Conclusion: A Dangerous Precedent for Trinidad and Tobago

The appointment of Stuart Young as Prime Minister without an electoral mandate, facilitated by a President with close ties to the ruling party, represents a clear erosion of democratic principles. The constitutional conflict between Sections 76 and 80 underscores the need for greater accountability and transparency in executive appointments.

The political, social, and financial consequences of this manoeuvre are profound:

• It undermines democracy by allowing the Prime Ministership to be controlled by party elites rather than the electorate.
• It damages public trust in institutions, increasing political apathy and instability.
• It perpetuates financial mismanagement, with an unaccountable administration continuing questionable economic practices.

If left unchallenged, this situation sets a dangerous precedent where future Prime Ministers can entrench themselves in power without electoral legitimacy—an effective slide towards dictatorship. Trinidad and Tobago must act now to defend its democratic integrity before it is too late.

The case for judicial independence.

There are several compelling arguments against the direct election of judges by the public. While the concept of electing judges may seem democratic, it can pose significant risks to the integrity, independence, and impartiality of the judiciary. Here are fully explained arguments against electing judges:

1. **Judicial Independence**: Elected judges may feel pressured to cater to public opinion or special interest groups in order to secure votes and win re-election. This pressure can undermine judicial independence, which is crucial for judges to make impartial and fair decisions based solely on the law and evidence presented before them. Without independence, the judiciary's ability to act as a check on the other branches of government and protect individual rights may be compromised.

2. **Political Influence and Bias**: Judicial elections can become highly politicized, with candidates aligning themselves with particular political parties or ideologies to appeal to voters. This politicization of the judiciary can lead to judges being perceived as biased or partisan, eroding public trust in the fairness and impartiality of the legal system. Furthermore, elected judges may feel beholden to political donors or interest groups, raising concerns about conflicts of interest and the integrity of judicial decision-making.

3. **Lack of Qualifications and Experience**: Judicial candidates in electoral systems may not always possess the necessary qualifications, experience, or legal expertise required to effectively adjudicate complex legal matters. Elections prioritize popularity and campaign skills over legal knowledge and competence, potentially resulting in underqualified individuals occupying judicial positions. This can undermine the quality and credibility of judicial decision-making and diminish public confidence in the judiciary's ability to uphold the rule of law.

4. **Short-Term Decision-Making**: Elected judges may be inclined to make decisions based on short-term political considerations or popular sentiment rather than the long-term interests of justice and the rule of law. This can lead to inconsistent and arbitrary rulings, as judges may prioritize re-election prospects over the principles of fairness, equality, and legal precedent.

5. **Vulnerability to Populist Sentiment**: Judicial elections can be susceptible to populist sentiment and emotional appeals, particularly in high-profile or controversial cases. Public opinion may sway judges to make decisions that are popular but legally unsound, undermining the principle of judicial independence and the rule of law. In such cases, the rights of minority groups or unpopular individuals may be at risk of being disregarded or violated.

6. **Undermining Merit-Based Selection**: Judicial elections bypass established merit-based selection processes, such as judicial appointments commissions or independent nominating bodies, which aim to identify and appoint the most qualified and impartial candidates to the judiciary. By politicizing the selection process, electoral systems undermine the meritocratic principles essential for maintaining a competent and independent judiciary.

Overall, while judicial elections may appear democratic on the surface, they can pose significant threats to judicial independence, impartiality, and the rule of law. To preserve the integrity of the judiciary and uphold the principles of justice, it is essential to maintain non-partisan, merit-based selection processes for appointing judges based on their qualifications, experience, and commitment to upholding the rule of law.

Pornography and violent movies are root causes of crime

I was bemused at Fitzgerald Hind’s publicly expressed opinion that pornography and violent movies are root causes of crime. Granted, in the same vein that he expressed this opinion, he also stated that “I am no sociologist, I am not criminologist [sic] but I am almost certain that they are.” [Daily Express 2/4/23, https://tinyurl.com/5c2aha3u].

I thought such outdated thinking was debunked many moons ago, but here comes our National Security Minister, arguing from authority and emotional thinking, simultaneously making two well-known critical thinking errors in one statement.

To quote from the article, “Responding to Hosein’s comments, Hinds expressed doubt about crime being linked to poverty and unemployment.

“The jury for me is out on that.”

He seems to have been asleep before, during and after the jury delivered on the social determinants of crime.

Might I suggest to the goodly minister that he investigate and make ample use of ChatGPT, a well-known open-source Artificial Intelligence (AI) which provides answers more rooted in reality. ChatGPT, when asked the question, “what are the main social determinants of crime?”, gave the answer below:

“Social determinants of crime are complex and interconnected factors that influence the likelihood of individuals engaging in criminal behaviour. These factors are rooted in social, economic, and environmental conditions. Some of the main social determinants of crime include:

1.        Poverty: Poverty can lead to feelings of desperation, frustration, and hopelessness, which can contribute to criminal activity as people search for ways to meet their basic needs or escape their circumstances.

2.        Education: Lower levels of education are associated with a higher likelihood of criminal involvement. Lack of education can limit job opportunities and social mobility, leading to increased vulnerability to criminal activities.

3.        Family structure: Dysfunctional or unstable family environments can contribute to the development of antisocial behaviour and delinquency, especially when there is a lack of proper supervision, positive role models, or emotional support.

4.        Peer influence: The influence of peers, particularly those involved in criminal activities, can increase the likelihood of an individual participating in crime. Peer pressure and the desire to fit in or gain social status can contribute to criminal behaviour.

5.        Unemployment: High unemployment rates can lead to financial insecurity, social dislocation, and frustration, all of which can contribute to criminal behaviour.

6.        Social disorganization: Communities with high levels of social disorganization, such as those characterized by residential instability, weak social networks, and limited community resources, often experience higher crime rates.

7.        Substance abuse: Alcohol and drug abuse can impair judgment, exacerbate existing mental health issues, and contribute to criminal behaviour, both directly (e.g., drug-related offenses) and indirectly (e.g., property crimes to support a drug habit).

8.        Inequality and social exclusion: Significant income disparities and social exclusion can lead to feelings of resentment, marginalization, and anger, which may contribute to criminal behaviour.

9.        Cultural factors: Cultural values and norms that condone or even encourage criminal behaviour can contribute to crime. For example, some subcultures may view certain criminal acts as acceptable or even prestigious.

10.      Mental health: Mental health issues, such as depression, anxiety, or personality disorders, can increase the risk of criminal behaviour, particularly when left untreated or combined with other risk factors.

It is important to note that these factors are not mutually exclusive, and multiple determinants may interact to influence an individual's likelihood of engaging in criminal behaviour. Addressing these social determinants is critical to reducing crime rates and promoting public safety.”

ChatGPT even provided references for the link between crime and poverty:

“How strongly is poverty associated with crime levels and give me some good references, please.”

“The association between poverty and crime levels is well-established, though the strength of the relationship can vary depending on various factors, including location, type of crime, and the specific measures used to assess poverty. Research indicates that people living in poverty are more likely to be both victims and perpetrators of crime, particularly property and violent crimes.

Here are some references that can provide more insight into the relationship between poverty and crime:

1.        Kelly, M. (2000). Inequality and Crime. Review of Economics and Statistics, 82(4), 530-539. URL: https://www.jstor.org/stable/2646711

2.        Sampson, R. J., & Wilson, W. J. (1995). Toward a Theory of Race, Crime, and Urban Inequality. In J. Hagan & R. D. Peterson (Eds.), Crime and Inequality (pp. 37-54). Stanford, CA: Stanford University Press.

3.        Fajnzylber, P., Lederman, D., & Loayza, N. (2002). Inequality and Violent Crime. The Journal of Law and Economics, 45(1), 1-39. URL: https://www.journals.uchicago.edu/doi/10.1086/338347

4.        Sharkey, P. (2009). Neighborhoods and the Black-White Mobility Gap. Economic Mobility Project, The Pew Charitable Trusts. URL: https://www.pewtrusts.org/en/research-and-analysis/reports/0001/01/01/neighborhoods-and-the-blackwhite-mobility-gap

5.        Chiricos, T. G. (1987). Rates of Crime and Unemployment: An Analysis of Aggregate Research Evidence. Social Problems, 34(2), 187-212. URL: https://www.jstor.org/stable/800558”

Mr Hinds seems out of his depth in thinking at a higher level beyond the Nicki Minaj approach to serious issues. I can only hold my head in despair at what further depths the country’s crime situation will plummet over the next few years.