By Westmin R.A. James
Westmin R.A. James is the Litigation Specialist for the University of the West Indies Rights Advocacy Project (U-Rap) who argued the Appeal, and was a part of the legal team along with Christopher Hamel-Smith SC lead counsel and Lisa M Shoman SC.
On 30th December 2019, the Belize Court of Appeal upheld the ruling of the Chief Justice (CJ) Kenneth Benjamin in the 2016 judgment, that section 53 of the Criminal Code, Belize’s colonial-era sodomy law was unconstitutional. The Court of Appeal confirmed that sec 53 of the Criminal Code contravened section 3 (the right to dignity), section 6 (the right to equality before the law), section 12 (the right to freedom of expression), section 14 (the right to privacy) and section 16 (the right to non-discrimination on grounds of sex) of the Constitution to the extent that it applies to carnal intercourse against the order of nature between persons. The judgment in Orozco having broken new ground in constitutional law, represents another jurisprudential first for the Caribbean. A decade in the making, it is the first appellate Court in the Caribbean to declare that the colonial era sodomy laws are unconstitutional and in so doing extended protection in respect of LGBTI persons in Belize and by extension the region.
The background
In 2010 Caleb Orozco, a gay man, challenged the constitutionality of section 53 of the Belize Criminal Code of Belize dealing with ‘carnal intercourse against the order of nature’ which prohibited consensual sexual activities between male/female and male/male crimes but was disproportionately associated with sex between males. He alleged that the section was inconsistent with specific rights guaranteed by the Constitution of Belize, namely section 3, 6, 12, 14 and 16 in so far as it prohibited consensual sexual intercourse between consenting gay men and therefore could not stand as a law as it was. On August 10, 2016 the CJ, in his judgment relying on the authorities from other jurisdictions and international law, held that the law breached the claimant’s rights to human dignity, privacy, freedom of expression, equality before the law and non-discrimination in particular on the ground of ‘sex’ which he interpreted to include ‘sexual orientation.’ He dismissed the argument that limiting rights was required for public morality or public health. The CJ also exercised the court’s power to revise the language in section 53 to bring the law in conformity with the Belize Constitution.
While the Government accepted the findings on sections 3, 6 and 14 and the decriminalisation which resulted, the Attorney General (AG) filed an appeal in relation to the two findings of the CJ on sections 12 and 16. The AG argued that the interpretation of the CJ in interpreting ‘sex’ in section 16(3) to include ‘sexual orientation’ was a breach of the constitutional principle of separation of powers. The second ground of appeal was that the judge did not explain how the right to freedom of expression was breached and that the decision was against the core constitutional principles. The Roman Catholic Church which along with other Churches were joined as interested parties to the High Court matter, sought to appeal the entire judgment but eventually abandoned that appeal. The Belize Court of Appeal heard arguments in the appeal from the parties in October 2018.
What the Court decided
The Court of Appeal was unanimous in their decision. The Court of Appeal first held that the appeal was not academic and even if it was, it was in the public interest to hear the appeal. They also confirmed that sec 53 of the Criminal Code contravened section 3, 6, 12, 14 and 16 of the Constitution to the extent that it applies to carnal intercourse against the order of nature between persons and was therefore void to that extent. They dismissed the two arguments advanced by the AG. The Court of Appeal felt however that it was sufficient to make a declaration that section 53 contravenes the various sections of the Constitution and felt that it was not appropriate for the CJ to add language to section 53.
Preliminary objection
Orozco filed a preliminary objection to the appeal arguing that the appeal was academic and would have no practical effect so it should be dismissed. He argued that even if the Appeal were successful, the CJ’s decision that Section 53 contravened the Constitution, and his order that the section be modified to bring it into conformity with the Constitution, would remain unaffected.
The Court of Appeal held that even though orally the AG conceded that the appeal was limited to two aspects of the CJ’s decision, sections 12 and 16(3), a challenge to the modification of section 53 of the Criminal Code was contained in the grounds of appeal. They held that not having been withdrawn in writing, it was still a live issue in the appeal and so the appeal was not academic. They went on to hold alternatively that an appellate court could still hear an appeal which has become academic if it raises issues of public interest. The Court of Appeal held that after applying the principles laid down in the authorities, that the points raised by the AG and the order made by the CJ raised important constitutional questions that were matters of public interest, and the Court therefore should still hear the appeal.
Sex includes ‘sexual orientation’
The Court of Appeal held the CJ did not exceed his power when he assigned the meaning “sexual orientation” to the word “sex” in the anti-discrimination section of the Constitution. The Court of Appeal, using the literal rule, found that the dictionary definition of ‘sex’ includes sexual activity or sexual intercourse which includes intercourse by homosexual persons and so sex includes sexual orientation is part thereof. The Court of Appeal also held that since sex has more than one meaning the CJ was entitled to apply a purposive and generous meaning to the term. They said that adopting a purposive approach consistent with the interpretation act of Belize provides that where there is more than one meaning, the meaning which is consistent with the international obligations and the meaning which promotes the general legislative purpose underlying the provision is to be preferred. The Court of Appeal reiterated the importance of international human rights commitments made by Belize in interpreting the human rights provisions in the Constitution, and held that those obligations supported the interpretation of the CJ. They also held that the underlying purpose of the constitution was to protect human rights and that includes accepting contemporary meanings of the words of the Constitution even if new or not expected.’ Awich JA added that “…consensual sexual intercourse between adult gays or between adult lesbians in private does not harm the fundamental rights and freedoms of others, nor does it intolerably harm contemporary public interest…” The Court of Appeal therefore concluded the word sex in section 3 and 16 of the Constitution includes ‘sexual orientation.
The Court of Appeal also rejected the argument of the AG that in ‘extending’ the meaning of the words sex to include ‘sexual orientation’ the CJ breached the doctrine of separation of powers. The Court of Appeal held that the core function of the judiciary was to interpret and apply law to the particular case. The Court of Appeal like the CJ believed the constitution itself has placed on the independent judiciary the duty to construe and apply the constitution and statutes and to protect fundamental rights. They held that is exactly what the CJ did in this case and that he did not in any way breach the doctrine of separation of powers. The Court of Appeal held that the CJ’s interpretation was not far-fetched and that he applied the correct rules and principles of interpretation and relied on relevant authorities as an accepted aid to interpretation.
Freedom of expression
The Court of Appeal rejected the submission that the CJ failed to reason and rationalize his judgment on freedom of expression. The Court of Appeal said that while the CJ may not have set out his reasoning in a way that counsel for the AG could have easily identified, the details were there. The Court of Appeal pointed to several instances within the judgment of the CJ where he addressed issues pertaining to freedom of expression. They also held that even if the CJ did not give reasons, it was within their power to draw their own inferences of facts and make such orders that the judge might have made. They held that the Court of Appeal would have concluded that sexual intercourse and heterosexual intercourse are forms of expression and that section 53, in criminalizing homosexual sexual intercourse, breached this form of expression in a discriminatory way on the basis of sex.
Section 53 amendment
The Court of Appeal next considered the order made by the CJ that the sentence “[t]his section shall not apply to consensual sexual acts between adults in private” be added to section 53. The Court of Appeal did not consider it was appropriate for the CJ to add language to section 53 and in the circumstances was overreaching. They held that the first and usual relief that should be granted is a declaratory order only unless urgency requires some other additional order was needed. They went on to say that where the declaratory order sufficiently defines the right claimed, the judge should refrain from making an order directing the rewriting of the legislation. They believed that the judge should be content with reading down the legislation and making a declaratory order so as to avoid overreaching. The Court of Appeal felt it was sufficient to make a declaration that section 53 contravenes the various sections of the Constitution and so set aside this part of the CJ’s ruling. The Court of Appeal therefore ordered that this sentence from the order of the CJ be removed.
Impact on the Caribbean
While decisions of Belize’s Court of Appeal are not binding in other jurisdictions, it is considered persuasive authority. The reasoning in the case having been upheld by two tiers of the Belize court system and having been sustained by the highest Court in other Commonwealth jurisdictions like India, enhances the possibility of success of LGBTI rights activists who have launched similar cases across the Caribbean. This decision, a decade in the making, has made it clear that criminalization of anal sex between consenting adults impinges on the right to the enjoyment of expressly guaranteed rights and freedoms and constitutes a denial of human dignity. It also solidifies that the fundamental rights of LGBTI persons across the Caribbean aren’t in the long term, easily contained.
