|CASE NAME||Attorney General of Belize v. Caleb Orozco|
|COURT/ TRIBUNAL||The Court of Appeal of Belize|
|STATUS||Judgment delivered on 30 December 2019|
Section 53 of Belize’s Criminal Code criminalised “carnal intercourse against the order of nature” which included consensual same-sex sexual activity between adults in private. In 2010 Caleb Orozco, a Belizean gay man and a prominent human rights defender, filed a challenge to Section 53 in the Supreme Court of Belize. The Human Dignity Trust joined the litigation as an Interested Party in April 2011. The case was heard in May 2013 and the first instance judgment was delivered by Chief Justice Kenneth Benjamin on 10 August 2016, finding in favour of Mr Orozco on all grounds, namely that Section 53 was unconstitutional, effectively decriminalising consensual same-sex activity conducted by adults in private.
The Attorney General appealed the Supreme Court’s judgment, albeit limited to two particular grounds, namely freedom of expression and non-discrimination on the grounds of “sex” under Sections 12 and 16 of the Constitution respectively. Notably, the decriminalisation of same-sex intimacy itself was not challenged by the Government. The Court of Appeal heard the case on 29 October 2018. The three-judge bench, made up of Mr Justice Samuel Awich, Mr Justice Murrio Ducille and Mr Justice Lennox Campbell, returned the Court of Appeal ruling on 30 December 2019, finding against the Appellant and upholding the judgment of the Supreme Court. In particular, the Court of Appeal upheld Chief Justice Benjamin’s reasoning in the Supreme Court that non-discrimination on the grounds of “sex” under sections 3 and 16 of the Constitution encompasses sexual orientation.
Supreme Court Judgment
In 2016, the Supreme Court found that the law criminalising consensual sexual conduct between adults in private, including same-sex intimacy, violated the constitutional rights to dignity, privacy, equality before the law, non-discrimination on grounds of sex, and freedom of expression, and cannot be justified on the basis of ‘public morality’. The Court also found that international treaty obligations must inform the interpretation of the Constitutional rights. As a result, the law was declared void and struck out to the extent that it captures consensual sexual conduct between adults in private. The court awarded costs to the Claimant.
Court of Appeal Judgment
On 30 December 2019, the Court of Appeal issued its judgment on the limited appeal, upholding the judgment of the Supreme Court. In particular, it upheld the reasoning of Chief Justice Benjamin in the Supreme Court that non-discrimination on the grounds of “sex” under Sections 3 and 16 of the Constitution encompasses sexual orientation.
The Court of Appeal added that, in reaching this view, Chief Justice Benjamin “did not exceed the courts’ power when he assigned the meaning sexual orientation to the word sex in ss. 3 and 16 of the Constitution so that, the word sex included sexual orientation.”
The Court of Appeal further rejected the other ground of appeal, namely that Chief Justice Benjamin had “failed to reason and rationalize” his decision that Section 53 violated freedom of expression, and further determined that even if there had been a lack of reasoning, the Court of Appeal would have reasoned on the evidence provided that “homosexual sexual intercourse and heterosexual sexual intercourse are forms of expression.”
The criminalisation of consensual same-sex sexual conduct in Belize was a legacy of British colonial rule. Globally, more than 70 jurisdictions still make private, consensual same-sex intimacy a crime. Of these criminalising jurisdictions, 35 are within the Commonwealth and nine are in the Commonwealth Caribbean (Antigua & Barbuda, Barbados, Dominica, Grenada Guyana, Jamaica, St. Kitts & Nevis, St. Lucia and St. Vincent & the Grenadines).
The criminal justice system in Belize is based on the principles of English common law. Sexual offences are primarily addressed in the Criminal Code, which was originally drafted by R.S Wright, an English barrister who was tasked in 1870 with drafting a criminal code for Jamaica, to be used as a model for the Caribbean colonies. The original code was based on the Indian Penal Code and was brought into force in Belize on 15 December 1888. Despite piecemeal reforms to the Criminal Code since Belize’s independence in 1981, Section 53 remained in place.
In September 2010, Mr. Orozco and UNIBAM filed a claim against the Attorney General of Belize challenging the constitutionality of section 53. 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.”
A year after the Orozco Case was filed, the Human Dignity Trust, together with the Commonwealth Lawyers Association and the International Commission of Jurists, joined the litigation as Interested Parties, with the aim of assisting the Supreme Court in its just disposal of the claim by drawing upon their expertise in comparative and international constitutional and human rights law.
The Roman Catholic Church of Belize, the Belize Church of England and the Belize Evangelical Association of Churches also joined the Orozco case as Interested Parties in order to oppose the claim.
The case was heard by the Chief Justice in May 2013.
In August 2016, the Chief Justice returned the court’s ruling, finding in favour of Mr. Orozco on all grounds. The Chief Justice determined that Section 53 was inconsistent with the Constitution because it violated the right to human dignity, privacy, freedom of expression, non-discrimination and equality before the law. The Court ‘read down’ Section 53 to exclude consensual sexual acts between adults in private from its criminalising scope.
The Chief Justice also ruled that the definition of “sex” in Section 16(3) of the Constitution includes ‘sexual orientation’, in line with Belize’s international obligations.
The Attorney General appealed the Supreme Court’s judgment, albeit limited to two particular grounds, namely freedom of expression and non-discrimination on the grounds of “sex” under sections 12 and 16 of the Constitution respectively. Notably, the remaining grounds upon which Section 53 had been held to be unconstitutional – dignity, privacy and equality before the law under sections 3, 6 and 14 – and the decriminalisation of consensual same-sex sexual intimacy itself were not challenged by the Government. The Roman Catholic Church of Belize, having filed an appeal against the Supreme Court ruling in its entirety, withdrew its appeal in March 2018.
The appeal was heard on 29 October 2018, with the three-judge bench ruling on 30 December 2019 upholding the decision of the Supreme Court in 2016.
Who is involved?
The case has been Caribbean-led by a coalition of organisations since its inception and has a groundswell of grassroots support from across the LGBT, academic, legal and NGO communities in several Caribbean countries. Prominent groups involved include the leading LGBT organisation in Belize the United Belize Advocacy Movement (UNIBAM); the University of the West Indies (UWI); and the UWI Rights Advocacy Project (U-RAP), which initiated the litigation in Belize.
Caleb Orozco, a Belizean citizen and prominent advocate for the rights of LGBT people, is the individual Claimant in this case. UNIBAM is an Interested Party supporting the case. The international legal community, through the Human Dignity Trust, the International Commission of Jurists and the Commonwealth Lawyers Association, supported Mr. Orozco’s case as Interested Parties.
The Attorney General acting on behalf of the Government of Belize.
A group of churches – namely the Roman Catholic Church of Belize, the Belize Church of England Corporate Body, and the Belize Evangelical Association of Churches – joined the case in the Supreme Court as Interested Parties, seeking to maintain the criminalisation of same-sex activity in Belize. The Roman Catholic Church of Belize initially filed an appeal, which it later withdrew. None of the churches party to the Supreme Court case joined the appeal.
In the Supreme Court Mr. Orozco and UNIBAM were represented by Lisa Shoman SC, Chris Hamel-Smith SC, Simeon Sampson SC and Professor Westmin James. The Human Dignity Trust, International Commission of Jurists and Commonwealth Lawyers Association were represented by Belizean counsel Godfrey Smith SC and Debevoise & Plimpton LLP led by Lord Goldsmith QC.
In the Court of Appeal, Mr Orozco was once again represented by Lisa Shoman SC, Chris Hamel-Smith SC, Simeon Sampson SC and Professor Westmin James. The Human Dignity Trust, International Commission of Jurists and Commonwealth Lawyers Association were represented pro bono by Leslie Mendez of Marine Parade Chambers Belize, Timothy Otty QC – a leading barrister at Blackstone Chambers and founder of the Human Dignity Trust – and Conway Blake of Debevoise Plimpton LLP.
Mr Orozco and the supportive Interested Parties successfully argued that Section 53 violated a number of guarantees in the Belizean Constitution. These include:
|Right to human dignity||Art. 3(c)|
|Right to personal privacy||Arts. 3(c) and 14(1)|
|Right to equality before the law, equal protection of the law and freedom from discrimination||Art. 6(1) and 16|
At the first instance court, Mr Orozco and the supportive Interested Parties sought and obtained a declaration that Section 53 violates the Constitution to the extent it criminalises consensual adult conduct in private.
The Court of Appeal upheld the reasoning of the Supreme Court judgment in relation to freedom of expression and non-discrimination on the grounds of ‘sex’, meaning that Section 53 of the Criminal Code violates the rights to dignity, privacy, equality before the law, non-discrimination on grounds of sex, and freedom of expression.
Role of the Human Dignity Trust
The Human Dignity Trust joined proceedings as an Interested Party, along with the Commonwealth Lawyers Association and the International Commission of Jurists, to support Mr Orozco’s claim and to assist the Supreme Court and the Court of Appeal in the just disposal of the claim by drawing upon their expertise in comparative and international constitutional and human rights law.