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Appeal to Gay Rights law change, now in Court Print E-mail

A panel of judges from the Court of Appeal is currently considering all submissions made for and against an appeal that the Government has brought against Caleb Orozco’s successful challenge of Section 53 of the Criminal Code. That’s the lawsuit in which the gay rights activist was able to convince the Chief Justice that the law violated his rights to dignity and privacy as a gay man.

In August of 2016, Chief Justice Kenneth Benjamin handed down a judgment legalizing sexual intercourse between persons of the same sex, as long as they were two consenting adults engaging in these types of acts. Orozco became the first Belizean to challenge the constitutionality of Section 53, asserting that it unfairly criminalized his sexual orientation. The Chief Justice’s ruling was a landmark one for Belize, and attorneys say that it has been lauded and praised by jurists in other parts of the world.

In the weeks and months that followed that judgment, churches insisted that the Government appeal the Supreme Court decision, because they were in disagreement with the legalization of gay sex. Initially, the Government was hesitant to appeal, but after some consideration, and public pressure from this social partner, a compromise was struck. The Government would make a very limited appeal of the judgment, and the Catholic Church, which was also a party to the original litigation, would be able to challenge the substantive ruling on behalf of the churches. The government was only to open the door for a possible appeal, to allow the churches to take lead. In March of 2018, however, the Catholic Church formally withdrew from the case, leaving the Government to fight this battle alone in an appeal which the Barrow Administration was initially reluctant to bring in the first case.

The only complaint that the Government had of the judgment was that when the judge decriminalized consensual gay sex, he also expanded the meaning of the word “sex” in the Belize Constitution to also include “sexual orientation”.

On Monday, October 29th, 2018, the Court of Appeal scheduled a full hearing for the Government’s appeal, so that the litigants can try to convince them one way or the other about the correctness of the Chief Justice’s expansion of “sex” in the constitution. Before the court could even hear the Government’s arguments, Caleb Orozco’s legal team, which included Westmin James and Lisa Shoman, made a preliminary objection. They were urging the court to dismiss this appeal at the initial stage because in their opinion, the appeal is academic, and hypothetical, and it does not affect the resolution of the main issue which the Chief Justice has determined.

Speaking with the press outside of Court, James, a Caribbean attorney who is also a lecturer at the University of the West Indies, told the press, “The attorney general’s appeal… doesn’t change that the law is unconstitutional and from the Chief Justice’s judgment… the law will not apply to male persons’ consensual intimacy of adults in private. This read down of the law by the chief justice will not change. That remains the law of Belize and so the appeal does not take us any further… There’s a lot of laws where the court of appeal and the higher courts don’t engage in matters that are not going to change anything. They rather that there be a case where it is going to be affecting - come before them so they can properly adjudicate on it. They don’t like these sorts of hypothetical questions.”

In response, Solicitor General Nigel Hawke, who was representing the Government, submitted to the court that they should allow the appeal to take place because it addresses an important public issue.

Briefily explaining his submission to the awaiting press, Hawke said, “I’m saying that there is some fundamental issue here that the court has to grapple with… Is this a matter for the court to decide, or [is this a matter for] the legislature? That, is a fundamental public issue. We all know that the public of Belize has some issues with the definition of sex as again, sexual orientation. We say those things should be properly left to the elected representatives.”

The court adjourned for 2 hours, and rather than delivering a ruling on the preliminary objection, they allowed the Government to argue its case fully. They intend to decide on the preliminary objection as part of their complete judgment of the appeal itself.

After a full day of arguments, Hawke also discussed the submissions he made on behalf of the actual appeal of the Chief Justice’s expansion of the word “sex” to mean sexual orientation in the constitution. From the Government’s position, the Chief Justice went too far, and infringed on the jurisdiction of the legislature.

Hawke told the press, “We are saying that it was a bit of an overreach to a rule that sex was expanded to include sexual orientation… even the courts have to be very careful or overstep its boundary in relation to interrupting the constitution… I think the ruling also tied the incorporation of the international covenant of civil and political rights. Where the court ruler, there was a tacit acceptance of it. We are saying it flies in the face of what the CCJ has said in Boyce that these things should be incorporated into our domestic law, and those things are left for the parliament.”

In response, Orozco’s legal team asserts that the Chief Justice did not overreach, and that he simply conducted his role as a member of the judiciary to interpret the constitution. They also insist that in 1996, Belize adopted the United Nation’s convention which is known as the International Covenant on Civil and Political Rights. From their perspective, due to this treaty obligation, Belize is obliged to interpret sex to also include sexual orientation, and that’s exactly what the judge did.

Explaining their submissions to the press, Lisa Shoman said, “The judges are the guardians of what the constitution means. It’s their job to interpret the constitution of Belize, in this instance, had ratified the ICCPR in 1996… That treaty obliges us to interpret sex as including sexual orientation.”

The judges have reserved their judgment on the appeal, and the preliminary object, to a date to be announced.