1. THE UNIBAM CASE
2. What the case is about Whether the criminalisation of consensual same sex sexual conduct is contrary to the Belize Constitution Very important case Opportunity for Belize to lead the way and set the standard for the Caribbean in righting a serious injustice What the case is not about: Not about same-sex marriage Not about adoption Not about any other social/other right It is scaremongering to suggest otherwise. Very important case Opportunity for Belize to lead the way and set the standard for the Caribbean in righting a serious injustice What the case is not about: Not about same-sex marriage Not about adoption Not about any other social/other right It is scaremongering to suggest otherwise.
3. Section 53 of Belize Criminal Code Section 53 states 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”
4. History of Section 53 Section 53 is a colonial import No pre-existing culture or tradition in Belize that required the punishment of consensual same-sex sexual conduct Was imposed on Belize (as on other colonies) by the British rulers
5. History of Section 53 cont.’ 1944 consensual same-sex sexual relations categorised as an ‘unnatural crime’ Ordinance 14 of 1944 repealed the requirement that unnatural crime was only committed where the act was accompanied by the use of force or lack of consent The offence has not been amended since Belize’s Independence [PETER: WE DO NOT HAVE THE TEXT OF ORDINANCE 14] Originally, included “use of force” or “lack of consent” – fundamental aspects which are legitimate to criminalise.[PETER: WE DO NOT HAVE THE TEXT OF ORDINANCE 14] Originally, included “use of force” or “lack of consent” – fundamental aspects which are legitimate to criminalise.
6. Parties to this case Claimants – Caleb Orozco and UNIBAM Defendant – Attorney General of Belize Interested Parties Human Dignity Trust Commonwealth Wealth Lawyers Association International Commission of Jurists Roman Catholic Church of Belize Belize Church of England Belize Evangelical Association of Churches
7. Genesis of Case University of the West Indies (UWI) United Belize Advocacy Movement (UNIBAM) Some have alleged that this is a western campaign but contrary to what has been reported, this is a home grown case. 22 July 2011, Amandala reported on a joint statement issues by the Belize Council of Churches that denounced Unibam’s suit as being “heavily influenced by foreign interests who seek to impose a worldwide view that directly contradicts the supremacy of God…” This is a case brought by Belizeans, about the Belizean Criminal Code and the Constitution of Belize No foreign entity driving case – merely supporting. The Commonwealth Lawyers Association, the International Commission of Jurists and the Human Dignity Trust who have joined in support of UNIBAM’s case as Interested Parties are not foreign interests challenging Belize’s national sovereignty and way of life. The criminalization of gay sexual identity is a violation of international human rights law and therefore necessarily attracts the interest and involvement of the international community. These three organizations reflect the concerns of the international legal community. [Belize cannot enjoy the benefits of being a member of the international community when it is convenient to do so, but opt out of international human rights norms when it chooses to.] Some have alleged that this is a western campaign but contrary to what has been reported, this is a home grown case. 22 July 2011, Amandala reported on a joint statement issues by the Belize Council of Churches that denounced Unibam’s suit as being “heavily influenced by foreign interests who seek to impose a worldwide view that directly contradicts the supremacy of God…” This is a case brought by Belizeans, about the Belizean Criminal Code and the Constitution of Belize No foreign entity driving case – merely supporting. The Commonwealth Lawyers Association, the International Commission of Jurists and the Human Dignity Trust who have joined in support of UNIBAM’s case as Interested Parties are not foreign interests challenging Belize’s national sovereignty and way of life. The criminalization of gay sexual identity is a violation of international human rights law and therefore necessarily attracts the interest and involvement of the international community. These three organizations reflect the concerns of the international legal community. [Belize cannot enjoy the benefits of being a member of the international community when it is convenient to do so, but opt out of international human rights norms when it chooses to.]
8. Arguments against criminalization Laws which criminalise consensual same sex conduct relegate people to an inferior status and degrade people’s dignity by declaring their most intimate feelings “unnatural” and illegal breaching one of the most fundamental human rights: the right to dignity
9. Arguments against criminalization cont.’ Section 53 is discriminatory, invades privacy, and creates inequality Legislation under challenge flies in the face of the changing world view and a growing body of international human rights law and precedents demanding that such laws should be struck down
10. The Belize Constitution Recognises “the equal and inalienable rights with which all members of the human family are endowed” Rights and freedom include rights to dignity, equality, privacy and health
11. Right to Dignity By the first Recital of the Constitution, the people of Belize: “affirm that the Nation of Belize shall be founded upon principles which acknowledge the supremacy of God, faith in human rights and fundamental freedoms, the position of the family in a society of free men and free institutions, the dignity of the human person and equal and inalienable rights with which all members of the human family are endowed by their Creator” (emphasis added).
12. Right to Dignity cont. Human dignity is a fundamental and foundational value which underlies and gives meaning to other human rights, including the rights to privacy, equality, and the right to be free from inhuman or degrading treatment At its core, the concept of human dignity reflects the principle: “that every human being is worthy of respect” It is used “to explain why human beings have rights to begin with”. At its core, the concept of human dignity reflects the principle: “that every human being is worthy of respect” It is used “to explain why human beings have rights to begin with”.
13. Right to Privacy In Belize, it is protected in Sections 3(c) and 14 of the Constitution: 3. - …every person in Belize is entitled to the fundamental rights…to (c) protection for his family life, his personal privacy, the privacy of his home and other property and recognition of his human dignity; 14.-(1) A person shall not be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. The private and family life, the home and the personal correspondence of every person shall be respected.
14. Right to Privacy cont. Decisions of the HRC interpreting the ICCPR, the ECtHR interpreting the European Convention, the IACHR interpreting the American Convention on Human Rights, and national courts interpreting their own constitutions all make clear that sexual activity between consenting adults in private is protected by the right to privacy
15. Right to Privacy cont. The right to privacy means a realm of space reserved for individual decision-making and activity The State may not invade such space without good cause Privacy protects personal choice and autonomy
16. Right to Privacy Indeed, in the words of one U.S. court, “it is hard to imagine any activity that adults would consider more fundamental, more private and, thus, more deserving of protection from governmental interference than non-commercial, consensual adult sexual activity.” Gryczan v State, 283 Mont. 433, 451, Supreme Court of Montana (1997)
17. Right to Equality The rights to equality before the law and non-discrimination are guaranteed in every major international and regional human rights instrument The UN treaty bodies, charged with monitoring compliance with the international human rights conventions, the ECtHR and the IACHR, and National courts, interpreting their own constitutions and national laws have all found that differences in treatment based on sexual orientation are arbitrary, in violation of both non-discrimination and equal protection guarantees Universal Declaration of Human Rights Art. 2; ICCPR Arts. 2(1) & 26; ICESCR Art. 2(2); American Convention Arts. 1 & 24; European Convention Art. 14; African Charter on Human and Peoples’ Rights Arts. 2 & 3. Universal Declaration of Human Rights Art. 2; ICCPR Arts. 2(1) & 26; ICESCR Art. 2(2); American Convention Arts. 1 & 24; European Convention Art. 14; African Charter on Human and Peoples’ Rights Arts. 2 & 3.
18. Right to Equality cont. The principle of equality means people who are similarly situated must be treated alike The failure to do so constitutes discrimination unless the difference in treatment is justified, meaning that the criteria for the differentiation are reasonable and objective and the aim is to achieve a legitimate purpose
19. Right to Equality In striking down sodomy laws on equality grounds, courts have concluded that such laws bear no rational relationship to a legitimate State purpose E.g. Lawrence v Texas (US) – moral disapproval not a legitimate governmental interest.E.g. Lawrence v Texas (US) – moral disapproval not a legitimate governmental interest.
20. Role of the Belize Courts Under the Constitution, Courts are given the role as guardians of fundamental rights and freedoms Empowered to secure the enforcement of any provisions of the Constitution and to determine the validity of any law Section 2 of the Constitution imposes a duty on the courts to ensure and protect the supremacy of the Constitution, and strike down legislation that is incompatible with the Constitution
21. Role of the Belize Courts cont.’ Patrick Reyes v The Queen Privy Council Appeal No. 64 of 2001, an appeal from the Court of Appeal in Belize concerning the constitutionality of the mandatory death penalty, “The court has no licence to read its own predilections and moral values into the constitution, but it is required to consider the substance of the fundamental right at issue and ensure contemporary protection of that right in the light of evolving standards of decency that mark the progress of a maturing society…In carrying out its task of constitutional interpretation the court is not concerned to evaluate and give effect to public opinion….”
22. When will the case be heard? Hearing originally scheduled 18 July 2011 A number of subsequent applications Date to be set by the Court for 2012
23. Global trends In a majority of the world’s countries, same-sex sexual relationships are not criminalised Either because: Never criminalised to begin with, or Legislatures and courts have recognised that the criminalisation of consensual private adult sex violates constitutional and international human rights laws and standards 84 countries criminalise homosexuality (includes 42 Commonwealth countries)84 countries criminalise homosexuality (includes 42 Commonwealth countries)
24. Global trends cont.’ Excepting Zimbabwe and Botswana, every superior, constitutional and supranational court that has considered the issue of the criminalisation of private consensual same-sex sexual relations has held that such laws contravene fundamental rights and freedoms
25. Global trends cont.’ Examples: The United States Supreme Court in Lawrence v Texas struck down the U.S. sodomy laws, explicitly overturning its previous decision in Bowers v Hardwick on the basis that intimate consensual sexual conduct was part of the liberty protected by substantive due process under the Fourteenth Amendment
26. Global trends cont.’ The South African Constitutional Court in National Coalition for Gay and Lesbian Equality v Minister of Justice found that the statutory provisions prohibiting sodomy were unconstitutional They violated the right to equality, privacy and dignity They unfairly discriminated against gay men on the basis of sexual orientation
27. Global view outside the judicial arena December 2008, 66 States signed statement presented to the United Nations General Assembly affirming the principle that international human rights law protects against violations based on sexual orientation and gender identity March 2011, 85 States signed a statement presented to the UNHRC that called on States to end criminal sanctions based on sexual orientation
28. Global view Cont. OAS has repeatedly condemned acts of violence and human rights violations committed against persons because of their sexual orientation The UN Secretary General, The High Commissioner for Human Rights and heads of various UN agencies have all spoken-out – calling for the worldwide decriminalisation of homosexuality
29. Global view cont. In January 2011, the UN Secretary General, Ban Ki Moon, categorically declared that “We must reject persecution of people because of their sexual orientation or gender identity who may be arrested, detained or executed for being lesbian, gay, bisexual or transgender. They may not have popular or political support, but they deserve our support in safeguarding their fundamental human rights. I understand that sexual orientation and gender identity raise sensitive cultural issues. But cultural practice can not justify any violation of human rights”
30. Global view cont. December 2009 Holy See stated: “The Holy See continues to oppose all grave violations of human rights against homosexual persons…The Holy See also opposes all forms of violence and unjust discrimination against homosexual persons, including discriminatory penal legislation which undermines the inherent dignity of the human person…”
31. Global view cont. December 2011 – Obama administration vowed to actively combat efforts by other nations that criminalise homosexual conduct October 2011 – David Cameron pledged to withhold UK aid from governments that do not adhere to proper human rights, e.g. Malawi had £19m of budget support suspended following concerns about its attitude to gay rights
32. The 4 wrongs Honourable Justice Michael Kirby: Wrong in legal principle They exceed the proper ambit and function of the criminal law in a modern society Wrong because they oppress a minority in the community and target them for an attribute of their nature that they do not choose and cannot change
33. The 4 wrongs cont.’ Wrong because they fly in the face of modern scientific knowledge about the incidence and variety of human sexuality Wrong because they put a cohort of citizens into a position of stigma and shame that makes it hard to reach them with vital messages about safe sexual conduct, essential in the age of HIV/AIDS
34. Significance of Case Set an important precedent for the rest of the Caribbean Commonwealth and beyond Recognition that sexual orientation is protected under the Constitution and a prohibited ground of discrimination Interestingly, the Political Reform Commission in Belize in 2000 recommended that sexual orientation be explicitly included as a prohibited ground of discrimination.Interestingly, the Political Reform Commission in Belize in 2000 recommended that sexual orientation be explicitly included as a prohibited ground of discrimination.
35. Conclusion There is little doubt that ultimately, the Court of Belize ought to declare section 53 of the Belize Criminal Code to be unconstitutional Questions?
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