Orozco v Attorney General (2016) 90 WIR 161, abbreviated Orozco v AG, and known in lay terms as the Orozco or UNIBAM case, was a leading case before the Supreme Court of Belize, which held that a long-standing buggery statute breached constitutional rights to dignity, equality before the law, freedom of expression, privacy, and non-discrimination on grounds of sex, and which declared the Act null and void to the applicable extent. The decision decriminalised consensual same-sex intercourse for the first time in 127 years of Belizean history, and established that the constitutional right to non-discrimination on grounds of sex extended to sexual orientation.
Background Buggery was first criminalised in British Honduras by the Criminal Code Act 1888, brought into force on 15 December 1888, and providing that: "Whoever is convicted of unnatural carnal knowledge of any person, with force or without the consent of such person, shall be liable to imprisonment with hard labour for life, and in the discretion of the Court to flogging". This first statute, nonetheless, classified buggery as a public nuisance, rather than an indictable offence. However, Ordinance Number 4 of 1944 removed the distinction, making both consensual and non-consensual same-sex intercourse an offence. The ordinance's wording was substantially retained in section 53 of the Criminal Code Act 1981 (the Criminal Code), which provided 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".
Caleb Orozco, then-president of the United Belize Advocacy Movement (UNIBAM), first contemplated litigation before the Supreme Court (the High Court) during a conversation with two law professors of the UWI Rights Advocacy Project, while at a 2009 conference on HIV/AIDS in Jamaica. The professors hoped to lay "the groundwork for a test case [which], if successful, could encourage similar legal challenges in neighboring countries", and considered Belize an "ideal" jurisdiction, as its Constitution Act 1981 (the Constitution) "had stronger personal privacy and equality protections than [that of] other Caribbean countries".
Facts Orozco "is a Belizean national who has faced violence, persecution and discrimination since he came out to his family when he was fifteen years of age". Orozco and UNIBAM jointly filed civil suit against the Attorney General on 24 September 2010. The claimants sought, principally, a finding declaring section 53 of the Criminal Code null and void and of no effect as regards private carnal intercourse between consenting persons, in so far as it contravened constitutional rights to dignity, privacy, and equal protection under the law, as enshrined in sections 3, 6, and 14 of the Constitution, respectively. UNIBAM were found to lack standing in 2011, and so removed as claimants, but admitted as an interested party for Orozco. Contemporaneously, the Commonwealth Lawyers Association, Human Dignity Trust, and International Commission of Jurists were admitted as interested parties for the claimant, while the Roman Catholic Diocese, Anglican Diocese, and Evangelical Association of Churches were admitted as interested parties for the defendant. Oral arguments were heard during 7–10 May 2013.
In support of their claim, Orozco deposed to an affidavit as follows. The claimant, and their interested parties and expert witnesses, further brought to bear evidence on the role the challenged statute played in the stigma, violence, and negative health outcomes experienced by queer nationals.
In opposition to the claim, the defendant and their interested parties first challenged the claimant's standing, arguing that the latter had not demonstrated past, present, nor likely future prosecution under the Criminal Code, as required by section 20 of the Constitution. The court, however, following Dudgeon v UK and Tan Eng Hong v AG, rejected this argument, noting the claimant "perpetually [ran] the risk of being prosecuted". The parties next challenged the court's authority and cogency as to the judicial review of an Act of Parliament. The court likewise rejected this challenge, following Nadan & McCoskar v The State, further noting, "the Supreme Court is the designated guardian of the rights conferred under the Constitution. It cannot shirk from such responsibility by asserting that any change to legislation is matter best left to the legislature. To do so would be to act in defiance of the mandate of the Constitution itself".
In interpreting the constitutional Act, Chief Justice Benjamin stated (in their opinion) that "the plain language of the Constitution must be given a liberal and purposive interpretation". Furthermore, noting its provenance from Universal Declaration of Human Rights via the European Convention on Human Rights, and following AG v Joseph, Boyce v R, and R v Lewis, the Chief Justice held that constitutional interpretation may ought to be informed by the jurisprudence of international bodies. The parts of the Constitution which were pertinent to the claim, namely sections 3, 6, 11, 12, 14, and 16, were therefore examined in accordance with the aforementioned principles.
Timeline
Judgment Section 53 of the Criminal Code was, first, held to be in breach of the claimant's right to dignity and so in violation of section 3 of the Constitution, here following Law v Canada and NCGLE v Minister of Justice. Significantly, the constitutional right to privacy, conferred by section 14 of the latter Act, was held to be "associated with" and to "emanat[e] from the concept of human dignity" (section 3). However, section 14 further exempts Acts from being deemed unconstitutional "to the extent that the law in question makes reasonable provision that is required in the interests of ... public morality" (a savings clause). The defendant and their interested parties, however, were unable to demonstrate that the buggery provision of section 53 was required in the interest of public morality, resulting in the section's being deemed non-exempt by the savings clause of section 14, here following Dudgeon v UK, Reyes v R, Lawrence v Texas, and O'Sullivan v MNR. Accordingly, section 53 was likewise held to be in breach of the claimant's right to privacy and so in violation of section 14. Finally, section 53 was held to be in breach of the claimant's right to equality before the law and so in violation of section 6 of the Constitution, and further, of section 16 of the same, here following Toonen v Australia. Significantly, in this last finding, the court interpreted the word "sex" in section 16 to extend to sexual orientation, following the UN Human Rights Committee interpretation of the same in articles 2 and 26 of the International Covenant on Civil and Political Rights, to which Belize acceded subsequent to Toonen.
Consequently, the court found in favour of the claimant as follows. The court further awarded the claimant "costs fit for two Senior Counsel".
Reactions The decision was welcomed by local and regional queer organisations, as well as international human rights bodies. It has been commended by scholars for bringing Belizean law "within the purview of international human rights". Orozco, in particular, has been praised for placing his "safety on the line to fight for equality".
Criticism Various aspects of the case were critiqued. The court's finding that UNIBAM lacked standing was criticised in scholarly and lay literature. The court's unusual delay was likewise noted. The little attention paid, in the written opinion, to the relationship between freedom of expression and the buggery statute has been called "unfortunate", given that this might "undermine its [the case's] usefulness in other litigation around the Caribbean".
Various interested parties, and in particular, their acceptance of foreign aid or advice, were also criticised outside of court. Human Dignity Trust "received harsh criticism in Belize because the article [announcing their involvement as an interested party in 2011] did not make it clear that the case had already been initiated by Belizean lawyers with a legal strategy developed by a local organisation". Belize Action, a Christian right group which opposed decriminalisation, denounced the involvement of overseas persons and organisations in favour of the claimants, but were themselves charged with hypocrisy for receiving foreign aid. Various other Christian right groups similarly echoed Belize Action, calling foreign involvement an instance of neocolonialism, but have likewise been flagged as foreign aid recipients themselves, with their condemnations deemed hypocritical diversion tactics. Notably, then-Prime Minister, Dean Barrow, expressed regret over the case's divisiveness, stating, "one of the things that we have to be grateful for in this country is [that] the culture wars we see in the United States have not been imported into Belize ... this is the start of exactly such a phenomenon".
Opposition
The case was vigorously opposed in the court of public opinion by the Christian right and other socially conservative entities in the country. For instance, the editor-in-chief of Amandala, Russell Vellos, notably stated, "homosexuals are predators of young and teenaged boys ... Woe unto us, Belize, if homosexuals are successful in our court. Woe unto us! In fact, since ours is a ‘test case,’ woe unto the world!"
On 26 November 2014, the Association of Evangelical Churches called for a national referendum on the question of whether section 53 of the Criminal Code should be retained, it being believed that the section would "remain intact because a majority of the citizenry share[d] the [Association's] views that it [was] necessary to upold [the section] in order to secure the morals and values of the society, and specifically to prevent the legislation of same-sex marriage".
Appeals The Attorney General, in AG v Orozco, appealed the High Court's ruling on sections 12 and 16 of the Constitution. Notably, government did not appeal the decriminalisation itself, findings regarding sections 3, 6, and 14, nor the court's exercise of judicial review. Oral arguments concluded on 29 October 2018, and appellate judgment was delivered on 30 December 2019. The Court of Appeal upheld the High Court's findings on both sections 12 and 16, and significantly, reaffirmed that the term "sex" in the Constitution encompasses sexual orientation, thereby becoming "the first appellate tribunal in the Caribbean to reach these conclusions". This decision became when it was not appealed to the Caribbean Court of Justice within the allotted time.
The Catholic Diocese appealed the judgment separately, but on , rather than limited, grounds. In March 2018, after missing several deadlines, they withdrew their appeal.
Legacy Orozco v AG was the first challenge to Belize's buggery statute since its introduction in 1888, and the first instance of the judicial review of such law in the Commonwealth Caribbean. The judgment made Belize the second country in the region to decriminalise consensual same-sex intercourse, after The Bahamas. The case is considered a landmark, and has been cited as possible precedent for peer countries.
See also LGBTQ rights in Belize LGBTQ history in Belize Tomlinson v Belizeconcurrent LGBTQ rights case
Notes and references Notes
References