2016 Global Review of Constitutional Law

How homosexuality is treated by the law
is an issue which has aroused huge controversy
across the region ever since it became
apparent, following the judgment of the European
Court of Human Rights (ECtHR), in
Dudgeon v UK, 20 that laws which criminalise
homosexual acts between consenting adults
are repugnant to international human rights
norms. Since, with one exception (Trinidad
and Tobago), the Bills of Rights to be found
in the region’s constitutions were modelled
on the European Convention on Human
Rights (ECHR), 21 Dudgeon opened up the
possibility that local laws which criminalised
homosexuality could equally be liable
to constitutional challenge and, worse still,
that the recognition of equal constitutional
status for homosexuals could lead, eventually,
to the legalisation of ‘gay marriage.’
Criminal Law; Sexual Orientation
The first case which I will consider is Orozco
v AG Belize, which involved a challenge
to the constitutionality of s.53 of the Belize
Criminal Code, which made ‘carnal intercourse
against the order of nature with any
person or animal’ a criminal offence liable
to ten years imprisonment. Though there
was no known statutory or clear judicial
definition of the terms ‘carnal intercourse’ or
‘against the order of nature’, it was agreed
on both sides that it included intercourse between
consenting adult males.
The constitutional significance of the case
locally, regionally, and internationally, is
highlighted by the interested parties that
were given leave to join in the proceedings.
On behalf of the Claimant, these included:
the Commonwealth Lawyers Association,
the Human Dignity Trust, the International
Commission of Jurists and UNIBAM, a
regional NGO campaigning on behalf of
LGBT rights. On behalf of the Defendant,
these included: the Roman Catholic Church
of Belize, the Belize Church of England
and the Belize Evangelical Association of
Churches. The stage was thus set for a constitutional
showdown between various local
and international NGOs determined to eradicate
discrimination against homosexuals,
and religious organisations in Belize equally
determined to maintain the criminalisation
of homosexuality.
The principal issues in the case that fell to be
decided were as follows: whether the claimant
had standing to bring these proceedings;
whether section 53 violated his right to human
dignity pursuant to section 3 of the
Constitution, his right to privacy pursuant to
section 14(1) and his right to non-discrimination
pursuant to s16; and, finally, whether
the limitations of these rights provided for by
section 9(2) of the Constitution, such as the
protection of public health or morality, justified
the retention of section 53.
On the issue of standing it was argued on
behalf of the defendants that because the
Claimant had never been prosecuted for an
offence under section 53 he did not possess
the necessary standing to bring the claim
pursuant to section 20(1) of the Constitution,
which requires that those who seek a
constitutional remedy must show that one
of the provisions of sections 3 to 19 of the
Constitution ‘has been or is likely to be contravened
in relation to him.’ Referring to the
judgment of the ECtHR in Dudgeon on the
self-same issue, the Court was, however, satisfied
that on the basis of the evidence presented
to the Court that prosecutions under
section 53, though rare, were still brought
from time to time. The claimant was thus
perpetually at risk of being prosecuted and,
therefore, had the requisite standing to bring
the proceedings.
In searching for the meaning of human dignity
under section 3 (c) of the Constitution,
which the Court regarded as a concept which
was central to the fundamental rights and
freedoms set out elsewhere in Chapter II of
the Constitution, the Court had regard to the
definition offered by the Canadian Supreme
Court in Law v Canada (Minister of Employment
and Immigration, 22 which held that
human dignity means that ‘an individual or
group feels self-respect and self-worth’: this
is harmed ‘when individuals and groups are
marginalized, ignored or devalued, but is enhanced
‘when laws recognise the full pace of
all individuals and groups within society.’ The
Court also had regard to the jurisprudence
of the Constitutional Court of South Africa
which, in National Coalition for Gay and
Lesbian Equality v Minister of Justice, 23 had
held that the common law offence of sodomy
was unconstitutional because it was a palpable
invasion of the right of gay men to dignity
which requires: ‘us to acknowledge the value
and work of all individuals as members of society.’
Finding itself in agreement with these
decisions, the Court concluded that section 53
violated the Claimant’s right to recognition of
his human dignity.
Following the decision of the ECtHR in
Dudgeon, the Court also had no hesitation
in holding that section 53 violated the right
to privacy. While section 53 may be gender
neutral on its face, it was discriminatory in its
effect upon homosexuals and, therefore, violated
the Claimant’s right to equal protection
of the law pursuant to section 6(1), and not to
be subject to laws that were discriminatory
either in themselves or in their effect pursuant
to section 16(1). In the case of the latter,
the Court extended the meaning of ‘sex’, as
one of the protected categories under section
16(3), to include sexual orientation. In
support of this expansion of the protected
categories under section 16(3), the Court
invoked the decision of the United Nations
Human Rights Council (UNHRC), which
had held in Toonen v Australia that the word
‘sex’ in Articles 2 and 26 of the International
Covenant of Civil and Political Rights (IC-
CPR) included ‘sexual orientation’. 24 Since
Belize had acceded to the ICCPR two years
20
(App No 7525/76) (1982) 4 EHRR 149.
21
See C Parkinson, Bills of Rights and Decolonization: The Emergence of Domestic Human Rights Instruments in Britain’s Overseas Territories (Oxford University
Press, 2007).
22
[1999] 1 SCR 497.
23
[1999] (1) SA 6.
24
Communication No. 488/1992, U.N. Doc. CCPR/C/50/D/448/1992.
44 | I•CONnect-Clough Center