By Dr Selwyn R. Cudjoe
April 16, 2018

“The dicta coming out of Puttaswamy emphasized the fact that sexual orientation is an essential attribute of privacy which is inextricably linked to human dignity.” —Justice Devindra Rampersad

A nation is a strange phenomenon. It takes many strands to make it whole. When so many things are going wrong in the nation and there seems to be little room for hope, little things happen that allows hope to blossom and points to what we can achieve if we only put our minds to it.

I am thinking of the many important achievements that took place in the nation this week—the victories of our athletes in the Commonwealth Games (Jereem Richards and Michelle Lee Ahee). They embodied many of the nation’s hopes and the immensity of our human possibilities.

One writer noted: “Standing on the podium, Lee Ahee settled the medal beneath her fiery red dreadlocks, shaking her head in astonishment at the occasion. She then sang along as Trinidad and Tobago’s national anthem played” (My emphasis). Significantly, she sang rather than mouthed the words of the national anthem.

I am also thinking of the speed with which President Paula-Mae Weekes put to rest Gillian Wall’s damning allegation that she refused to appoint and swear in Darryl Smith as a minister in the Ministry of Housing because she disagreed with the Prime Minister. The President was “greatly distressed and dismayed by the fabrication, particularly in light of her reminder to citizens and the media in her inauguration address of their duty to report responsibly, which includes avoiding disseminating misinformation.”

The President stated what was required of her under the constitution even though I would have liked to hear (or perhaps look forward to hearing in the future) under what set of circumstances she is likely to interpret the constitution over and beyond what is written.

It is in this sense that I welcomed Justice Devindra Rampersad’s ruling in Jason v. the Attorney General of Trinidad and Tobago. It was a literary and legal gem that the public received enthusiastically. This is why I was a bit dismayed that our media interpreted this ruling as primarily a victory of the LGBTQ community rather than a victory for all its citizens. It represents a distancing from the shibboleths of old that kept us tethered to the past.

This is why Rampersad’s ruling was such a masterpiece. Not only was he contesting against legal luminaries (Elton Prescott, SC), he was also ruling against powerful entities in the society: the Sanatan Dharma Maha Saba and the Trinidad and Tobago Council of Evangelical Churches, each of whom felt that religious beliefs must trump everything else in the society.

But, as Justice Rampersad pointed out, “Trinidad and Tobago is a secular state and as such this case could not be determined on the basis of religious belief….[It] is one about the inalienable rights of a citizen under the Republican Constitution of Trinidad and Tobago.”

I was equally impressed that Justice Rampersad recognized that as an independent society we must see ourselves in a modern light and find out what works for us. Too often, we are content to consume everything the old colonial order declared to be virtuous. As Justice Rampersad pointed out, in Trinidad and Tobago and all the other British colonial territories, sodomy and all these other backward laws were transplanted into our constitution unexpurgated.

T&T cannot act as though it is some citadel lying outside the world concourse of ideas. The learned judge duly cited that “laws that criminalize consensual sexual intimacy between adults of the same sex have been struck down or declared unlawful by courts around the world, in the Americas, Europe, Africa, Asia and Australia and declared in contravention of international treaty law.” It is time we follow suit.

This is why we took so much pride in our athletes’ achievements. They can’t hide in a little hamlet called Point Fortin and proclaim their greatness. When they come out to play, they take on the best Commonwealth athletes. They give their best performance that was honed by years of experience, practice and dedication.

The nation, as Elleke Boehmer writes, “is a social artifice—a symbolic formation rather than a natural essence. It exists insofar as the people who make up the nation have it in mind, or experience it as citizens, soldiers, readers of newspapers, students and so on” (Colonial and Post Colonial Literature). None of us will ever meet all our fellow citizens personally. The most we can do is to learn from the dedication of Richards and Ahee and be inspired by the intelligence and common sense of thinkers such as Justice Rampersad and President Weekes.

In his judgment Justice Rampersad’s cited a ruling on the right of privacy in Puttaswamy v. Union of India, in which he complimented “the felicitous exposition of what the right to privacy entails” by the members of a nine judge bench of the Supreme Court of India. I, too, was impressed with Justice Rampersad’s “felicitous exposition” of the facts of the case and the lucidity of his arguments. I believe we can learn a lot from our victorious Commonwealth athletes and levelheaded President. And from them we can see a glimmer of hope for our nation.