The Jason Jones appeal is about much more than the criminalisation of private, consensual sexual activity between adults of the same sex.
It exposes a deeper constitutional problem:
Should laws inherited from a colonial and morally different era remain protected from modern constitutional rights simply because they are old?
The Judicial Committee of the Privy Council heard the appeal on 8 July 2026. Judgment is awaited.[1] The immediate dispute concerns sections 13 and 16 of the Sexual Offences Act 1986.[2] The more important systems question concerns section 6 of the Constitution.
My conclusion is straightforward.
Section 6(2) does not have to remain an indefinite constitutional life-support machine for outdated laws. It can be narrowed by the courts. It can be rewritten or repealed by Parliament. Ultimately, Parliament can rewrite the Constitution itself, just as Parliament did in 1976.
The real obstacle is not legal power. It is political will.
1. Jason Jones and the problem with section 6(2)
Jason Jones challenged sections 13 and 16 of the Sexual Offences Act 1986. The provisions criminalise conduct which, when it takes place privately between consenting same-sex adults, directly engages constitutional rights to equality, protection of the law, privacy and family life, and freedom of thought and expression.[3]
In 2018, Rampersad J held that the provisions were unconstitutional and granted constitutional relief.[4] In 2025, the Court of Appeal, by a majority, allowed the Attorney General’s appeal in part.[5]
The difficulty was section 6.
Section 6 is a savings law provision. It protects certain laws which existed before the 1976 Constitution from being invalidated for inconsistency with the fundamental rights in sections 4 and 5.
Section 6(2) goes further. Where a later enactment “repeals and re-enacts with modifications” an existing law, and the later law infringes rights more severely than the old law, the Constitution may require the old provisions to be substituted for the additional infringement.
The result in the Court of Appeal demonstrates the problem vividly.
The Court reduced the maximum punishment for buggery from 25 years to the old five-year penalty and reinstated the former colonial offence of gross indecency between men in place of parts of section 16.[6]
In simple terms:
The modern law created a constitutional problem, so the legal system reached backwards and revived the older law.
That is the central difficulty in the case.
The Attorney General argues that the basic offences existed before the Constitution and that the 1986 Act merely re-enacted them with modifications. The protected historical core therefore survives.
Jones, represented by Anand Ramlogan SC and his legal team, argues that this is legally wrong.
The 1986 legislation expressly described its purpose as to “repeal and replace” the old sexual offences laws. Parliament undertook a comprehensive reconsideration of sexual offences. The parliamentary debates expressly referred to updating the law to reflect contemporary “moral and social thinking”.[7]
The 1986 Act changed:
- the structure of the offences;
- the categories of persons affected;
- definitions;
- penalties;
- exemptions;
- age provisions; and
- the relationship between different forms of sexual conduct.
That looks much more like legislative reform than the re-enactment of an old law with limited modifications.
There is also an important textual argument.
Section 6(3) defines “alters” broadly. It includes:
- repealing and re-enacting with modifications;
- making different provisions in place of an old law; and
- modifying the law.[8]
But section 6(2) uses the narrower expression “repeals and re-enacts with modifications”.
The distinction must mean something.
All re-enactments with modifications may be alterations. But not every alteration is a re-enactment with modifications.
If Parliament creates different provisions in place of an old law, it should not automatically inherit the old law’s constitutional immunity merely because the legislation concerns similar subject matter.
That is where the long-term importance of the case lies.
Constitutional rights are generally interpreted generously and in the light of contemporary conditions.[9] The Privy Council has, however, held that the meaning of an existing-law savings clause does not itself evolve under the “living tree” principle.[10]
That makes a direct judicial attack on section 6 itself difficult.
But it does not require the courts to interpret section 6 expansively.
The better rule is this:
A savings clause may protect a historical legislative decision. It should not give hereditary constitutional immunity to every later Parliament which legislates on the same subject.
Constitutional immunity should not be hereditary.
2. How section 6(2) can be removed or whittled down with legal force
There are two serious routes.
The first is judicial interpretation.
The second is constitutional amendment.
The judicial route
The courts could interpret section 6(2) strictly and narrowly.
The principle should be:
Once Parliament genuinely reconsiders an area of law, repeals the old regime and creates a new legislative scheme, the new law must satisfy the modern Constitution.
The protection would operate in one direction only:
Old law
↓
Temporarily protected
↓
Parliament genuinely reconsiders and replaces it
↓
Constitutional immunity ends
↓
The new law must satisfy modern constitutional rights
This would create a constitutional one-way ratchet.
Once legislation leaves the savings regime, it cannot return.
That approach would not abolish section 6. It would preserve its historical function while preventing constitutional immunity from passing indefinitely from one generation of legislation to another.
There is respectable authority for treating savings clauses narrowly and refusing to extend them beyond their precise language.[11]
The effect would be gradual but significant. As Parliament modernised legislation, the stock of protected colonial law would naturally shrink.
The parliamentary route
The cleaner and more decisive solution is formal constitutional amendment.
Section 54(1) expressly provides that Parliament may alter any provision of the Constitution.[12]
Section 54(6) defines alteration broadly. It includes:
- repeal, with or without re-enactment;
- making different provisions in place of an existing provision;
- modification; and
- suspension.
Section 6 falls within sections 4 to 14. A Bill altering it therefore requires the support, at the final vote, of not less than two-thirds of all members of each House.[13]
Parliament could therefore legally:
- repeal section 6(2);
- rewrite the whole savings law regime;
- impose an expiry date on saved-law protection;
- make all saved laws subject to modern constitutional rights review;
- require a comprehensive parliamentary review of every remaining saved law; or
- preserve temporary protection only where immediate invalidation would cause genuine legal disorder.
A reform provision could state:
No law shall be immune from review for consistency with the fundamental rights and freedoms guaranteed by this Constitution merely because that law, or an earlier law concerning the same subject matter, was in force before the commencement of this Constitution.
That would deal with the problem directly.
There would, however, need to be transitional arrangements.
A badly designed repeal could create uncertainty in areas well beyond sexual offences. Parliament could therefore allow a fixed review period, preserve final judgments and completed proceedings, and require all remaining saved laws to be examined within a defined period.
The choice is not between permanent constitutional immunity and overnight legal chaos.
A modern legal system is capable of managing transition.
3. Why Parliament can rewrite the Constitution for modern life
This brings me to the irony which I have commented on for years.
The Constitution is itself an Act of Parliament.
The governing instrument is the Constitution of the Republic of Trinidad and Tobago Act 1976.[14]
The 1976 Parliament used the amendment machinery in the former Constitution. The Act itself records that the required special majorities had been obtained. It then repealed the former Constitution, revoked the 1962 constitutional Order in Council and brought the new Constitution into force as the supreme law of the State.[15]
That is not theory.
It already happened.
In 1976, Parliament had sufficient constitutional power to:
- end the former constitutional settlement;
- establish the Republic;
- replace the former Constitution;
- create the office of President; and
- enact a new supreme law.
The present Constitution retains the same basic principle.
Section 54 says Parliament may alter any constitutional provision. Changes to section 6 require the two-thirds majority described above. Changes to section 54 itself and other specially entrenched provisions require the higher threshold of three-quarters of all members of the House of Representatives and two-thirds of all members of the Senate.[16]
The Constitution therefore distinguishes between ordinary legislative power and constituent power.
An ordinary parliamentary majority cannot simply ignore the Constitution.
But Parliament acting with the constitutionally required supermajorities can exercise a much deeper power: the power to alter the constitutional settlement itself.
That is the key point.
The Constitution is supreme, but it is not immutable.
It was written by human beings responding to the political, legal and social conditions of their time. It contains procedures by which later generations may reconsider that settlement.
The supermajorities exist for good reason. Fundamental constitutional change should require broad political agreement. A government with a narrow temporary majority should not be able to redesign the State at will.
But difficulty is not impossibility.
The real barrier is political.
It is easier for governments to leave outdated laws in place and force individual citizens to spend years litigating them than to build the coalition required for constitutional reform.
That is the deeper lesson from Jason Jones.
The immediate question is whether sections 13 and 16 of the Sexual Offences Act survive.
The larger question is whether section 6 should continue allowing the social and moral judgments of an earlier colonial era to control the rights of citizens indefinitely.
The systems question is larger still:
If parts of the constitutional machinery no longer serve modern society properly, why not use the constitutional power which already exists to redesign that machinery?
Trinidad and Tobago did exactly that in 1976.
It can do it again.
A Constitution should provide a durable framework within which a living society can function. It should protect rights, democratic government and legal certainty.
It should not become a legal freezer in which the prejudices of the past are preserved indefinitely simply because they are old.
Footnotes
[1] The Attorney General of Trinidad and Tobago and others v Jason Jones JCPC/2025/0095, hearing 8 July 2026.
[2] Sexual Offences Act 1986 (Trinidad and Tobago), ss 13 and 16.
[3] Constitution of the Republic of Trinidad and Tobago 1976, ss 4(b), 4(c), 4(i), 5, 6 and 13.
[4] Jason Jones v Attorney General of Trinidad and Tobago CV 2017-00720 (High Court of Trinidad and Tobago, 12 April 2018); order of 20 September 2018.
[5] Attorney General of Trinidad and Tobago v Jason Jones CA Civ P 337/2018 (Court of Appeal of Trinidad and Tobago, 25 March 2025).
[6] ibid, order of 25 March 2025.
[7] Sexual Offences Act 1986, long title; Trinidad and Tobago, House of Representatives Debates, 21 February 1986, 933–34.
[8] Constitution of the Republic of Trinidad and Tobago 1976, s 6(3).
[9] Minister of Home Affairs v Fisher [1980] AC 319 (PC) 328–29; Boyce v The Queen [2004] UKPC 32, [2005] 1 AC 400 [28].
[10] Chandler v State (No 2) [2022] UKPC 19, [2023] AC 285 [96]–[98].
[11] R v Hughes [2002] UKPC 12, [2002] 2 AC 259 [35]; Watson v The Queen [2004] UKPC 34, [2005] 1 AC 472 [46]–[47]; Miguel v State [2011] UKPC 14, [2012] AC 361 [53]–[62]; Suraj v Attorney General of Trinidad and Tobago [2022] UKPC 26, [2023] AC 337 [110]–[112].
[12] Constitution of the Republic of Trinidad and Tobago 1976, s 54(1).
[13] ibid ss 54(2)(a), 54(6).
[14] Constitution of the Republic of Trinidad and Tobago Act 1976, Act No 4 of 1976.
[15] ibid preamble, ss 3 and 22; Constitution of Trinidad and Tobago 1962, s 38.
[16] Constitution of the Republic of Trinidad and Tobago 1976, s 54(3).
