Two days ago, in Caleb Oroczo vs The Attorney-General of Belize, the Supreme Court of Belize struck down Section 53 of the country’s Criminal Code, which penalised “carnal intercourse against the order of nature.” The Supreme Court found that Section 53 violated the claimant’s constitutional rights to dignity, privacy, and non-discrimination. The judgment stands out for the brevity of its reasoning, its close attention to evidence of LGBT discrimination, and its humanity, three qualities which, experience has taught us, cannot be taken for granted in cases of this kind.
The Court began its scrutiny of the Section by a quick foray into the history of anti-sodomy laws. In paragraph 9, it observes that the antecedent of sodomy laws in the Caribbean was Section 377 of the colonial Indian Penal Code, brought into force in 1860. The Belize Criminal Code of 1888 penalised “unnatural carnal knowledge”, but only if it was non-consensual. By an amendment of 1944, the requirement of non-consent was removed, and the Section was given its present form.
The Court then went into the question of the interpretation of Section 53. Before the Supreme Court, a number of Churches had also impleaded themselves in support of the Section. These Churches argued that Section 53 did not only apply to homosexuals, but also covered anal sex as well as oral sex between men and women. On a consideration of the evidence, however, the Court found that Section 53 had been primarily used to target male homosexuals, and therefore, despite its ostensibly gender-neutral language, was unevenly applied to men.
The Claimant before the Court was a homosexual man. From paragraphs 27 to 33, the Court considered his evidence, extracting two paragraphs from it to demonstrate “constant harassment, mocking and stigmatisation”, as well as taking note of the fact that he had been subjected to abuse and threats of violence on multiple occasions. The Court also recorded his evidence to the effect that members of the LGBT community often shun tests for HIV/AIDS because of the stigma involved, as well as the threat of criminal prosecution. This evidence was buttressed by formal reports that had reached the same conclusion, as well as UNIBAM, an NGO representing LGBT persons.
After considering the Claimant’s personal evidence, the Court then took notice of expert reports by psychiatrists, which pointed out that homosexuality is not a mental disorder (it was removed from the American Psychiatric Association’s list of mental disorders), and that “conversion therapy” was damaging and dangerous. It also took notice of a report filed by Executive Director of the Belize Family Life Association, which showed that criminalisation had the effect of driving LGBT people underground, and was consequently a threat to their health (paragraph 38). This was corroborated by two other expert reports.
With the help of this evidence, the Court was able to find that the Claimant had locus standi to pursue this case, since by engaging in same-sex intercourse, he ran the “perpetual risk” of being charged and prosecuted under Section 53. The Court also swiftly disposed off another preliminary objection, based upon the separation of powers. Rejecting the argument that this was an issue best left to the Parliament, the Court clarified that “the Supreme Court is the designated guardian of the rights conferred under the Constitution. It cannot shirk from such responsibility by by asserting that any change to legislation is a matter best left to the legislature. To do so would be to act in defiance of the mandate of the Constitution itself.” (paragraph 53) The Court also addressed the issue of strong religious sentiments against homosexuality, noting that “[while] the respect and influence of the Churches in Belize cannot be ignored… Belize is a secular state that with a written Constitution that provides for the protection of fundamental human rights and freedoms.” (paragraph 56)
With these preliminary objections out of the way, the Court proceeded to consider the merits of the argument. Starting with the right to dignity, it adopted the language of the Canadian Supreme Court in understanding dignity as being about “self-respect” and “self-worth” (paragraph 63). Evidence of stigmatisation had already been placed on record earlier, and in light of this, the Court found that Section 53 violated the claimant’s constitutional right to dignity (paragraph 67). The Court made a similar finding with respect to the right to privacy which, it held “emanated” from the right to dignity (paragraph 68). Under the Constitution of Belize, the right to privacy could be curtailed under certain circumstances, one of which was public morality. The State argued that Section 53 legitimately curtailed the right to privacy on the basis of public morality. However, this argument was rejected by the Court, on the basis that it was “a bald assertion not supported by any evidence.” (paragraph 69) The Churches also raised “public health” as a ground, citing a study about the Belize Central Prison that had found that men having sex with men (MSM) led to a higher risk of HIV-AIDS. However, on considering the balance of evidence, the Court held that there was enough professional scientific material on record (referred to above) that demonstrated the opposite. It therefore rejected the public health argument on grounds of evidence as well (paragraph 73). Finally, the Court considered the public morality argument made by the Churches, who claimed, in detailed affidavits, that homosexuality went against the moral sentiments of the majority of the people of Belize. In paragraph 81, the Court rejected this argument in the following terms:
“There can be no doubt that the Reverend gentlemen deposed to views that that they sincerely and conscientiously hold, and that are representative of a majority of the Christian community and perhaps of the population of Belize. However, from the perspective of legal principle, the Court cannot act upon prevailing majority views or what is popularly accepted as moral. The evidence may be supportive but this does not satisfy the justification of public morality. There must be demonstrated that some harm will be caused should the proscribed conduct be rendered unregulated. No evidence has been presented as to the real likelihood of such harm. The duty of the Court is to apply the provisions of the Constitution.”
In other words, the Court rejected the notion of a free-standing, pure “moral harm”, contained solely in hurt feelings or outraged sentiments. Mere moral outrage could not be a sufficient ground for restricting basic rights, unless an accompanying harm could be demonstrated. Although the Court did not elaborate upon what it understood the term “harm” to mean, it was clear about what it did not mean.
Lastly, the Court held that Section 53 violated the right to non-discrimination on grounds of sex. Citing the famous Toonen vs Australia, that had interpreted “sex” in the non-discrimination clause of the ICCPR to include “sexual orientation”. The Court held that since Belize had ratified the ICCPR, it was bound by the authoritative interpretation of that instrument by the UN Human Rights Committee (paragraph 94). Consequently, “sex” under the non-discrimination clause of the Belize Constitution included “sexual orientation”, and Section 53 was therefore unconstitutional. As I have argued before, there are two ways of understanding this contention: one (which I find unconvincing) is that sexual orientation is an “analogous” ground to “sex”, and is therefore read into a non-discrimination clause as a separate right altogether. This seems to me to be textually insupportable. However, the other way of understanding this is that discrimination on the basis of sexual orientation has its origins in sex: it is precisely the non-conformity to sexual roles that open up LGBT persons to legal and social persecution. Consequently (as has been argued by certain American scholars), discrimination on grounds of sexual orientation should be considered as part and parcel of sexual discrimination, since both are caused by the same set of underlying stereotypes.
Having found multiple constitutional violations, the Court then finished by reading down Section 53, stipulating that “this section shall not apply to consensual sexual acts between adults in private” (paragraph 99).
At 38 pages, the judgment of the Supreme Court of Belize is a model of crisp, lucid, and tightly-reasoned legal prose. There are a few salient features that I would like to quickly recap (and attentive readers will note that the structure of reasoning is virtually a mirror image of the judgments of other constitutional courts that have upheld sodomy laws as constitutional):
- Although the language of the section is ostensibly gender neutral, the Court holds that it admits of uneven application, and has indeed been unequally applied; consequently, it gives rise to a constitutional cause of action
- The Court rejects the argument that this is a matter best considered by Parliament, reasoning that its constitutional mandate is to uphold fundamental rights
- The Court rejects justifications based purely on grounds of religion, on the basis that the Constitution commits the nation of Belize to being a secular polity. In other words, religious justifications for curtailing fundamental rights do not count as constitutionally admissible reasons
- After the claimant has demonstrated prima facie infringement of his rights, the Court places the burden of justifying the curtailment upon the State. It engages with the evidence on record (especially with respect to the medical evidence), and finds that on its own terms, the State has failed to discharge the evidentiary burden upon it
- In considering the public morality argument, the Court refuses to constitutionalise hurt moral sentiments, and insists upon demonstration of actual harm
- The Court engages throughout with comparative constitutional jurisprudence in order to determine the meanings of fraught terms such as “dignity”.
In terms of legal clarity, intellectual rigour, and of course, in terms of humaneness, sensitivity, and empathy in dealing with the so-called rights of the minuscule minority, one probably could not ask for more. The Supreme Court of Belize has joined numerous other judiciaries in upholding one of the most basic human rights that there is. One can only hope that other constitutional courts will eventually follow it.