A media consultant at Amnesty, United Kingdom, has provided the following judgment report, an unofficial summary of the Belize Court’s conclusion striking down the sodomy laws of that country.
Unofficial : Judgment Report:
The Court was called to order at 10 am. The case was called and appearances made by Lisa Shoman SC for all parties.
The Chief Justice then read the judgment.
The Chief Justice first went through the procedural steps in the case highlighting when the Fixed Date Claim was filed, the reliefs sought by the Claimant, the entry of the interested Parties into the case and the striking out of UNIBAM as a party and UNIBAM being joined as an interested party. The Court also referred to the objection made by the State during the hearing of the case by the State that the Claimant didn’t have a particular right pleaded about conscious and the ruling of the court on that issue during the hearing.
Legislative History and Decriminalisation in England
The Chief Justice then went through the legislative history of section 53, its colonial past and how it was introduced in the Caribbean and how it was introduced in Belizean law and thereafter amended to remove consent. He also referred to the decriminalization of homosexuality and acts of sodomy between consenting adults in England. He referred to the report of the Wolfenden Committee advising Parliament bin 1957 to repeal of laws punishing homosexual conduct which was amended in England in 1967.
What section 53 means
The Chief Justice then detailed the interpretations of section 53. He indicated that there has been no interpretation of section 53 in Belize. He looked to other countries that had similar legislation and how it was interpreted. He looked at McCoskar & Nadan v State – High Court of Fiji, [2005] FJHC 500 which held “carnal intercourse against the order of nature” included all penetrative sexual acts against the flesh such as anal and oral sex and excluding vaginal intercourse. He held while the law seemed to apply to both male and female there seems to be no clear application of the law to women.
He cited the expert evidence of Ms Nicole Haylock to show that the application of the law has been in relation to men. He also said that for the very least it has an unequal application to men. The Chief Justice relied on the evidence of the State and the Chief of Police who stated that if the act was discovered during investigation they would prosecute.
Evidence of Orozco
The Chief Justice then went through the facts of the case gleaned from the affidavits. He first went through the Affidavit of the Claimant who described himself as a homosexual man and described how he came to know that he was gay at an early stage and the difficulties he experienced growing up.
Evaluation of expert evidence before the court
The Chief Justice also went through the difficulties of the law in relation to HIV testing and support highlighting the expert evidence to that effect.
He went through the evidence of Kendal Trapp and Dr Jacqueline Sharpe. He specifically mentioned the evidence of the social effects of the law and how it affects on HIV testing. He referred to the report “Collateral Damage: The Social Impact of Laws Affecting LGBT Persons in Guyana” by Christopher Carrico.
He also referred to Dr. Jacqueline Sharpe’s testimony that according to all the leading Psychiatric Associations and Medical Organizations that sexual orientation is not a mental disease/disorder but is compatible with normal sexual health. He also spoke to her evidence that attempts to “cure” homosexuality are in effectual and can be clinically harmful and can lead to depression, anxiety and self destructive behavior.
He also went through the evidence of Ms Joan Burke and the high rate of HIV in Belize, the highest rate in Central America and how indication of a person’s sexual orientation is essential for health care. He also went through the evidence of Chris Beyrer and the complication of HIV treatment and MSM because of the law. He also went through the statistics in relation to persons being arrested and prosecuted for a breach of the law.
Standing of Orozco to bring the claim
The first legal issue the Chief Justice dealt with was the argument by the Defendants that the Claimant had no standing to bring the claim. The Chief Justice referred to the redress clause and the requirements of a person to bring a claim. The Chief Justice indicated that it was plain on the evidence that the Claimant runs the risk of being prosecuted and was supported by the Chief of Police evidence. The Court referring to Dungeon v UK and Norris v Ireland indicated that the mere maintenance in force of legislation of this kind has a continuous and direct effect making them an unapprehended felon. Therefore the Claimant had standing.
Separation of powers and the role of the court and Parliament
The Chief Justice then dealt with the submission by the State that any change to the law was the duty of Parliament and it would be contrary to the separation of powers doctrine for the Court to do so. He referred to the evidence of Mr Oscar Ramjeet who argued that the “Court ought not to enter the domain of the National Assembly to change the provision under challenge since that is not the role and function of the Court and any purported attempt to do so would infringe the sacred constitutional doctrine of separation of powers”
The Chief Justice said that the Court will be shirking its responsibility if they just leave it to Parliament. He highlighted that Mr Oscar Ramjeet himself acknowledged that when he said “The Court’s function is to operate as the guardian of the Constitution and its duty to interpret the Constitution and laws to maintain the Rule of Law in Belizean society” The Chief Justice said that fundamental to the preservation of democracy is the Court’s ability to interpret law and find it unconstitutional. Also referring to Vriend v Alberta [1998] 1 SCR 493 and held that the Constitution is interpreted by the courts, in accordance with their proper role and the separation of powers.
Belize a secular country
The Chief Justice then went through the arguments. He first turned to the reference to God in the preamble to the Constitution. The Chief Justice held that the reference to the supremacy of God does not privilege any specific religious perspective. He acknowledged that what it does is to affirm the historical origins of the Constitution and confirms the idea that rights are derived from sources beyond the state and its laws. He concluded that the reference to God goes beyond God and creator does not import religious views into the Constitution especially since it was declared in the same Constitution that there was freedom of conscious. He also referred to cases of Reyes v R and Chief Justice Conteh in Wade v Roches holding that Belize was a secular country.
The right to human dignity
The Chief Justice relied on a decision from Canada on the meaning of human dignity. He held that in Belize, human dignity is specifically recognized as a guaranteed enforceable right in section 3 of the Constitution. He held that it was a free standing right because section 3 is included in section 20,the redress clause. He held that section 53 affects the human dignity of gay men and it disproportionally affects gay men. He indicated that human dignity was the cornerstone of democracy and ruled section 53 to have breached the Claimant’s right to human dignity3(c) of the Belize Constitution.
Privacy
The Chief Justice then evaluated the arguments on whether the law breached the right to privacy. The Chief Justice stated that it was two-stage test, whether there was a breach and whether there was any reasonable limitation on the right.
He evaluated what is meant by privacy, what is personal privacy. Relying on authorities held there was a prima facie breach. He then went on to second stage of the test limitation based on public morality and public health.
He held there was no evidence provided that public morality was affected. Further, he dealt with public health and the evidence by Professor Bain’s evidence. The Court reiterated the evidence of Joan Burke and the fact that the decriminalization will greatly assist in the fight against HIV/AIDS. Relying case of Dungeon, Norris he says the second part of the test fails. He said that no doubt Bishop Wright and Pastor Crawford sincerely hold their views but the court has a duty to protect minorities and social outcasts as the Constitution promotes diversity.
Freedom of Expression
He highlighted that Freedom of Expression was one of pillars of democracy. (details needed from the written decision)
Equality
The Chief Justice held that equality in section 3, the opening section to the bill of rights in the Constitution, was not a stand-alone or an autonomous right in the Constitution.
He said the non-discrimination clause (section 16) recognizes discrimination in fact and in effect. The clause prohibits discrimination on specific grounds including sex. He held that the discrimination in this case was discrimination in effect. He went on to hold that ‘sex’ under the non-discrimination section in Belize should be interpreted to include sexual orientation. He held that this interpretation was consistent with the State’s international obligations and so he would interpret the word sex to include sexual orientation. As a result he held that section 53 was in breach of the Claimant’s right to non-discrimination.
The Chief Justice held that there was a breach of equality before the law and equal protection of the law under section 6 as well.
Remedy
The Chief Justice said pursuant to the Constitution he was concluding that section 53 is inconsistent with the Constitution to the extent that it includes consensual and private sexual activities between adults, and ruled that it be modified it to bring it into conformity with the Constitution. He held section 53 should be read down to exclude consenting same sex intimacy in private and indicated that it did not affect sex with minors nor sex with animals.
Thursday, August 11, 2016