Orozco v The Attorney General et Al
| Jurisdiction | Belize |
| Judge | Benjamin, C.J. |
| Judgment Date | 10 August 2016 |
| Court | Supreme Court (Belize) |
| Docket Number | 668 of 2010 |
| Date | 10 August 2016 |
Supreme Court
Benjamin, C.J.
668 of 2010
Mr. Christopher Hamel-Smith SC, Ms. Lisa Shoman SC, Mr. B. Simeon Sampson SC and Mr. Westin James for the claimant and the 7th Interested Party.
Mr. Nigel Hawks, Deputy Solicitor General, Ms. Magali Perdomo, Senior Crown Counsel, Ms. Iliana Swift and Mr. Herbert Panton, Crown Counsel, for the Attorney General.
Lord Goldsmith QC and Mr. Godfrey Smith SC for the 2nd and 3rd Interested Parties.
Mr. Eamon Courtenay SC, Mr. Michel Chebat SC, Mr. Rodwell Williams SC, Mrs. Jacqueline Marshalleck and Mr. Christopher Coye for the 4th, 5th and 6th Interested Parties.
Constitutional Law - Fundamental Rights and Freedoms — Right to recognition of human dignity — Protection for personal privacy — Right not to be subjected to arbitrary or unlawful interference with privacy — Right to respect private life — Freedom of conscience — Freedom of expression — Protection from discrimination — Whether section 53 of the Belize Criminal Code was contrary to sections 3,6 and 14 of the Belize Constitution where the provision criminalised anal sex between two consenting males in private where there was evidence of stigmatisation and discrimination against gay men — Against the order of nature — Consideration of Nadan & McCoskar v. State [2005] F.J.H.C. 500 — Definition of homosexuality — Laws affecting LGBT — Locus standi — Whether the claimant had locus standi where section 20 of the Constitution included a person who was likely to have the rights contravened — Consideration of Naz Foundation v. Government of NCT of Delhi 160 (2009) DLT 277; Dudgeon v. UK A 45 [1981] E.C.H.R. 7525/76 and Tan Eng Hong v. Attorney General [2012] SGCA 45 — No subsisting prosecution — Whether the doctrine of separation of powers was violated where the Court was protecting and interpreting the rights under the constitution — Consideration of Lawrence v. Texas 539 US 558 (2003) — Role of court — Consideration of Patrick Reyes v. The Queen PC Appeal No. 34 of 2001 [2002] U.K.P.C. 11 — Living instrument — Right to dignity — Whether the Claimant's right to dignity was infringed where the impact on the dignity of a homosexual man was disproportionate given the stigmatisation caused by them being primary targets — Consideration of human dignity in Law v. Canada (Minister of Employment and Immigration) [1999] 1 S.C.R. 497 — Common law offence of sodomy — Consideration of National Coalition for Gay and Lesbian Equality v. Minister of Justice [1999] 1 SA 6 — Right to privacy — Whether the Claimant's right to privacy was infringed — Sole limitation was public morality — Whether the argument of public morality could succeed where the Constitution would be invalid over popular opinion — Consideration of Clement Wade v. Maria Roches and G. O'Sullivan v. M.N.R (No. 2) [1991] 2 C.T.C 117 — Right to freedom of expression — Whether the Claimant's right to freedom of expression was infringed where it criminalised the individual's freedom to express his or her preference or orientation — Consideration of two stage inquiry to determine whether the freedom of expression of an individual has been infringed in Erwin Troy Ltd. v. Quebec (Attorney General) [1989] 1 S.C.R. 927 — Right to equality — Whether the Claimant's right to equity was infringed where the Claimant had shown that he had been rendered a criminal by virtue of homosexuality — Consideration of Toonen v. Australia Communication No. 488/1992 — Finding that the Claimant had the locus standi to bring the claim — Finding that Section 53 of the Belize Criminal Code contravened sections 3, 6, 12 and 16 of the Belize Constitution to the extent that it applied to carnal intercourse against the order of nature between persons.
The present proceedings are for constitutional redress pursuant to Rule 56.7 of the Supreme Court ( Civil Procedure Rules), 2005 by Fixed Date Claim Form dated September 24, 2010. The claimant seeks the following relief:
“1. A Declaration that section 53 of the Belize Criminal Code, Chapter 101 which provides that:
‘Every Person who has carnal intercourse against the order of nature with any person or animal shall be liable to imprisonment for ten years’
contravenes the constitutional rights of the Applicant enshrined in sections 3, 6 and 14 of the Belize Constitution and affirmed in the Preamble of the Belize Constitution, and is accordingly, null and void and of no effect to the extent that it applies to carnal intercourse between persons;
2. An Order striking out the words “with any person or” appearing in the said section 53;
3. Such other declaration and orders and such directions as this Honourable Court may consider appropriate for the purpose of enforcing or securing the enforcement of the aforementioned Declaration and Order;
4. Such further or other relief as the Court thinks just;
5. Costs.”
The Claim is a challenge to the constitutional validity of section 53 of the Belize Criminal Code to the extent that it operates to criminalize anal sex between two consenting male adults in private. The grounds of the Claim are set out in the Fixed Date Claim as follows:
“1. The accepted statutory interpretation of ‘carnal intercourse against the order of nature’ is that section 53 of the Criminal Code criminalises anal sex between two consenting male adults in private.
2. In the premises, and in the light of the preamble to the Constitution of Belize which recognises “the dignity of the human person and the equal and inalienable rights with which all members of the human family are endowed by their Creator”, section 53 violates
(i) the right to the recognition of human dignity guaranteed by section 3(c) of the Belize Constitution;
(ii) the right to the protection for personal privacy guaranteed by section 3(c);
(iii) the right to the protection of the privacy of the home guaranteed by section 3(c);
(iv) the right not to be subjected to arbitrary or unlawful interference with privacy or unlawful interference with privacy guaranteed by section 14(1);
(v) the right to respect for private life guaranteed by section 14(1); and
(vi) the right to the equal protection of the law without discrimination guaranteed by section 6(1).
The original Fixed Date Claim at the time of filing named the United Belize Advocacy Movement (“UNIBAM”) as a claimant along with Caleb Orozco. The Court has granted an application dated April 11, 2011 by the Commonwealth Lawyers Association, the Human Dignity Trust and the International Commission of Jurists to be added as Interested Parties. At trial these bodies appeared as 1 st, 2nd and 3rd Interested Parties and presented arguments in support of the Claim.
By an application dated May 17, 2011, the Roman Catholic Church of Belize, the Belize Church of England Corporate Body and the Belize Evangelical Association of Churches (“the Churches”) were granted permission to be added as the 4th 5th and 6th Interested Parties. The Churches presented arguments complementary to the case for the defendant in opposition to the challenge.
By an application dated October 17, 2011, the Court ordered that UNIBAM be struck out as a claimant on the basis that as an inanimate body constitutional rights were not guaranteed by sections 3, 6 and 14(1) of the Constitution. Thereafter, UNIBAM successfully made an application dated December 8, 2011 to be added as an Interested Party representing men who have sex with men (MSM) and persons who are lesbian, gay, bisexual and transgendered (LGBT). At trial, the claimant and UNIBAM as the 7th Interested Party were commonly represented and relied on the same arguments in support of the Claim.
In the course of the trial, the Deputy Solicitor General supported by learned Senior Counsel for the Churches objected to the reliance by the claimant in his submissions without amendment upon alleged violations to section 11 (freedom of conscience), section 12 (freedom of expression) and section 16 (protection from discrimination). Arguments were heard and additionally the claimant applied to add section 16 as one of the grounds. It was ruled that the Statement of Case be amended to add section 16 as a ground. As to the submissions relating to sections 11 and 12, learned Senior Counsel for the claimant pointed out that the invoking of those sections were in response to submissions by the Churches as to the importance of God in the interpretation of the Constitution, to which explanation there was no demur. The basis of the ruling was that the defendant was not taken by surprise, that the Claim before the Court for determination was not thereby varied and that it was desirable that the challenge be comprehensively addressed.
The common law of England recognised the crime of sodomy as an offence against God as recorded in the treatises of Freta and Britton in the years 1290 and 1300 respectively. The former mandated that those connected to Jews and guilty of bestiality and sodomy be buried alive in the ground. Britton wrote of sodomists being burnt upon public conviction. The offence was then tried in the Ecclesiastical courts.
With the rift from the Catholic Church during the reign of King Henry VIII in the sixteenth century, a statute of 1533 reinstituted the offence of sodomy which became triable in secular courts. The statute rendered the “detestable and abominable Vice of Buggery committed with mankind or beast” punishable by death. The 1533 statute was re-enacted in 1563 and subsequently was superseded by section 61 of the Offences Against the Person Act, 1861. The death penalty for buggery was replaced by a sentence of life imprisonment or any term of not less than ten years.
Prior to 1861, the British colonial rulers commissioned Thomas Babington Macaulay to draft a comprehensive...
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