Orozco v Attorney General

Orozco v Attorney General (2016) 90 WIR 161, also known as Orozco v AG, the Orozco case, or the UNIBAM case, was a landmark case heard by 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 statute null and void to the applicable extent. The decision decriminalised consensual same-sex intercourse for the first time in 127 years, and established that the constitutional right to non-discrimination on grounds of sex extended to sexual orientation.[note 1]

Orozco v Attorney General
CourtSupreme Court of Belize
Full case nameCaleb Orozco v Attorney General of Belize
Started24 September 2010 (2010-09-24)
Decided10 August 2016 (2016-08-10)
Citation(s)90 WIR 161
Case history
Prior action(s)none
Appealed toCourt of Appeals of Belize
Subsequent action(s)BZCA 32 of 2016 (30 Dec 2019)
Court membership
Judge sittingCJ Kenneth Benjamin
  J Michelle Arana
Keywords

Background

Buggery statute

Buggery is thought to have been first criminalised in colonial Belize by the Criminal Code Act 1888, brought into force on 15 December 1888, which provided 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.[1]

This first statute, nonetheless, classified consensual buggery as a public nuisance, rather than an indictable offence.[1] However, Ordinance No. 4 of 1944 removed the distinction, making both consensual and non-consensual buggery a crime.[1] The Ordinance's wording was substantially retained in section 53 of the Criminal Code Act 1981, 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.[2][note 2]

Claim preparation

Caleb Orozco, then-president of United Belize Advocacy Movement (UNIBAM), first contemplated litigation during a conversation with two law professors of the UWI Rights Advocacy Project, while at a 2009 conference on HIV/AIDS in Jamaica.[3] The professors hoped to lay 'the groundwork for a test case [which], if successful, could encourage similar legal challenges in neighboring [Commonwealth] countries,' and considered Belize an 'ideal' jurisdiction, as its Constitution Act 1981 'had stronger personal privacy and equality protections than other Caribbean countries.'[3]

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.[4] Orozco and UNIBAM jointly filed suit against the Attorney General of Belize on 24 September 2010.[5][4] The claimants sought, principally, a finding declaring section 53 of the Criminal Code Act 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 Act.[6][note 3] UNIBAM were found to lack standing in 2011, and so removed as a claimant, but admitted as an interested party for Orozco.[7] 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.[8] Oral arguments were heard during 7–10 May 2013.[9][note 4]

In support of their claim, Orozco deposed in an affidavit –

Even though I am an adult and the expression of my sexuality is consensual and conducted in private with other adults and is therefore not harmful to others, my worth and dignity as a human being and value as a member of society are not recognised. Indeed, my constitutional rights to dignity, equality, freedom of expression and privacy are violated by criminalising the free expression of my sexuality and, worse, having my sexuality linked with sexual practices involving animals. Further, the general prejudice and abusive conduct of the public which the law engenders and encourages affects my right to express my human sexuality and to establish and nurture relationships with consenting male partners without outside interference.[10]

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 LGBT nationals.[11][note 5]

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 challenged statute, as required by section 20 of the Constitution Act.[12][13] 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.'[14][15][16] The parties next challenged the Court's authority and cogency as to the judicial review of an Act of Parliament.[17] 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.[18][note 6]

In interpreting the Constitution Act, Chief Justice Benjamin opined that '[t]he plain language of the Constitution must be given a liberal and purposive interpretation.'[19] Furthermore, noting the Act's 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 the Act's interpretation may or ought to be informed by the jurisprudence of international bodies.[20][note 7] The parts of the Act which were pertinent to the claim, ie sections 3, 6, 11, 12, 14, and 16, were therefore examined in accordance with the afoementioned principles.[21][note 8]

Timeline of case-related events.
DateEventNote
24 Sep 2010United Belize Advocacy Movement, Caleb Orozco lodge claimcf [22][note 9]
11 Apr 2011Commonwealth Lawyers Association, Human Dignity Trust, International Commission of Jurists admitted as interested partiescf [23]
17 May 2011Catholic Diocese, Anglican Diocese, Evangelical Association of Churches admitted as interested partiescf [24][note 10]
17 Oct 2011United Belize Advocacy Movement stricken as claimantcf [25]
8 Dec 2011United Belize Advocacy Movement admitted as interested partycf [25]
7 May 2013Arguments begincf [9]
10 May 2013Arguments endcf [9]
10 Aug 2016Judgment delivered–

Judgment

Section 53 of the Criminal Code Act was, first, held to be in breach of the claimant's right to dignity and so in violation of section 3 of the Constitution Act, here following Law v Canada and National Coalition for Gay and Lesbian Equality v Minister of Justice.[26][27][28] Significantly, the 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.'[29] However, section 14 exempts laws from being deemed violations of the former 'to the extent that the law in question makes reasonable provision that is required in the interests of [...] public morality[.]'[29][30] 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 section 14, here following Dudgeon v UK, Reyes v R, Lawrence v Texas, and O'Sullivan v MNR.[31][30][note 11] Accordingly, section 53 was likewise held to be in breach of the claimant's right to privacy and so in violation of section 14.[32] 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 Act, and further, of section 16 of the same, here following Toonen v Australia.[33][34] Significantly, in this last decision, 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.[35][36][note 12]

Consequently, the Court found in favour of the claimant as follows.

It is hereby declared that section 53 of the Belize Criminal Code [Act 1981], Chapter 101 [of the Substantive Laws of Belize], contravenes sections 3, 6, 12 and 16 of the Belize Constitution [Act 1981] to the extent that it applies to carnal intercourse against the order of nature between persons. [...] It is therefore ordered that the following sentence be added to section 53 of the Criminal Code, Chapter 101: "This section shall not apply to consensual sexual acts between adults in private."

— CJ Kenneth Benjamin on 10 August 2016.[37][note 13]

The Court further awarded the claimant 'costs fit for two Senior Counsel.'[38]

Reactions

Acclaim

The judgment was welcomed by local and regional LGBT organisations, as well as international human rights bodies.[39] It has been commended by scholars for bringing Belizean law 'within the purview of international human rights.'[40] Orozco, in particular, has been praised for placing his 'safety on the line to fight for equality.'[41][note 14]

Criticism

Various particular aspects of the judgment and case were criticised. The Court's finding that UNIBAM lacked standing was criticised in scholarly and lay literature.[42] The Court's unusual delay was also criticised.[43] The little attention paid, in the written decision, to the relationship between freedom of expression and the buggery statute has been called 'unfortunate,' given that this might 'undermine its [the judgment's] usefulness in other litigation around the Caribbean.'[44]

Various interested parties, and in particular, their acceptance of foreign aid or advice, were also criticised. 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 [UNIBAM].'[45] Belize Action, a religious group who opposed the decriminalisation of same-sex intercourse, denounced the involvement of overseas persons and organisations in favour of the claimant, but were themselves criticised for receiving foreign aid.[46][note 15] Various local conservative groups similarly criticised foreign involvement in the case, calling it an instance of neocolonialism, but have likewise been criticised for accepting foreign aid, and their criticisms described as a hypocritical diversion tactic.[47][48] Then-Prime Minister, Dean Barrow, seemingly concurred, 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 [the case] is the start of exactly such a phenomenon.'[48]

Opposition

The case was opposed by various local bodies and persons. For instance, the editor-in-chief of the Amandala, Russell Vellos, 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!

— Russel Vellos for the Amandala.[49]

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 Act 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.'[50]

Appeals

The Attorney General, in Attorney General v Orozco, appealed the Supreme Court's judgment on sections 12 and 16.[51][52] Notably, Government did not appeal the decriminalisation of same-sex intimacy, findings regarding sections 3, 6, and 14, nor the Court's exercise of judicial review.[53][54] Oral arguments concluded on 29 October 2018, and judgment was delivered on 30 December 2019.[51][54][55] The Court of Appeals upheld the lower court's findings on sections 12 and 16, and notably, reaffirmed that the term 'sex' in the Constitution Act encompasses sexual orientation, thereby becoming 'the first appellate tribunal in the Caribbean to reach these conclusions.'[55][54] This judgment is considered final, as it was not appealed to the Caribbean Court of Justice within the required time.[56]

The Roman Catholic Diocese also appealed the judgment, but on all, rather than limited, grounds.[39]

Significance

Orozco v AG is thought to have been the first challenge to Belize's sodomy statute since the latter's introduction in 1888, and the first instance of the judicial review of such law in the Commonwealth Caribbean.[57][58][59][note 16] The judgment made Belize the second Commonwealth Caribbean country to decriminalise consensual same-sex intercourse, after The Bahamas.[39] The case is considered a 'landmark,' and has been cited as a possible precedent for other former British colonies in the region.[60][61][62][note 17]

Notes and references

Explanatory footnotes
  1. In Belize, consensual same-sex intercourse was made a public nuisance in 1888, and an indictable offence in 1944 (Orozco 2016, para. 9). In this article, references to section 53 are to the Criminal Code Act 1981, ie the Criminal Code, and references to sections 3, 6, 11, 12, 14, or 16 are to the Constitution Act 1981, ie the Constitution. All other references to sections or articles are properly contextualised.
  2. During 1997–2008, 43 cases of unnatural crime were lodged in the Supreme Court, with 32 disposed of (Orozco 2016, para. 39). The Police and Crown Counsel Departments noted that arrests for buggery were rare, it being common practice to release any arrested persons with a warning (Orozco 2016, para. 40).
  3. The claimants further sought an order directing the words 'with any person or' be stricken from the section, any further declarations, orders, or relief deemed appropriate or just, and costs (Orozco 2016, para. 1). Subsequently, sections 11, 12, and 16 of the Constitution Act were invoked (Orozco 2016, paras. 6, 62). Sections 3, 6, 11, 12, 14, and 16 of said Act guarantee rights to dignity and privacy, equal protection under law, freedom of conscience, freedom of expression, privacy, and non-discrimination on grounds of protected characteristics, respectively (Zeldin 2016, para. 4).
  4. Orozco was represented by Christopher Hamel-Smith and Lisa Shoman. Interested parties for Orozco were represented by B. Simeon Sampson, Westin James, Peter Goldsmith, and Godfrey Smith. The Attorney General was represented by Nigel Hawke, Magali Perdomo, Iliana Swift, and Herbert Panton. Interested parties for the Attorney General were represented by Eamon Courtenay, Michel Chebat, Rodwell Williams, Jacqueline Marchalleck, and Christopher Coye.
  5. Counsel for the claimaint, Christopher Hamel-Smith, stated during arguments that section 53 presented their client with 'an intolerable choice, which no citizen should ever have to make, to live as a law-abiding citizen by suppressing his sexuality, or abandon all hope of ever living as a law-abiding citizen' (Beirich 2013, p. 8).
  6. Nadan & McCoskar v The State cited as [2005] FJHC 500.
  7. AG v Jeffery Joseph et al cited as CCJ Appeal No. CV2 of 2005. R v Lewis cited as (2007) 70 WIR 75.
  8. The initial claim invoked only sections 3, 6, and 14, but the remaining sections were subsequently invoked.
  9. At the time of filing, the United Belize Advocacy Movement had 'over 121' members who were interested in 'challenging the constitutionality of section 53 of the Belize Criminal Code,' but who were reluctant to be named individually in the matter as 'a result of the stigma and possible physical and verbal attacks [to] which LGBT [...] individuals [were] subject' (Orozco 2016, para. 32). By 2015, the LGBT community in Belize were described as 'timid, fractured and apolitical' (Scott 2015, para. 16).
  10. In 2015, it was reported that '[m]ore than 400 church leaders and ministries came together to mobilise their adherents in the name of public morality' (Scott 2015, para. 20).
  11. G. O'Sullivan v M.N.R. (No. 2) cited as [1991] 2 C.T.C 117.
  12. Sections 11 and 12 of the Constitution Act were not developed in oral arguments, nor in the Court's judgment in Orozco 2016, paras. 63-89. Nonetheless, section 53 was held to contravene section 12 of said Act (Orozco 2016, para. 97, Tisdale 2018, p. 106).
  13. Though not explicitly stated here, section 53 was further held to contravene section 14 of the Constitution Act (Orozco 2016, para. 86, CLA 2018, para. 1). Chief Justice Benjamin deemed the right conferred by section 14 to 'emanate' from that conferred by section 3 (Orozco 2016, para. 68). The rights guaranteed by sections 3, 6, 12, 14, and 16 are, respectively, to dignity, equality before the law, freedom of expression, privacy, and non-discrimination on grounds of sex (CLA 2018, para. 1, OC 2019, verso, left column, HDT nd, sec Applicable Law).
  14. When the case gained public attention, Orozco experienced 'extensive hate mail, [hate] videos and a home invasion' (Tisdale 2018, p. 116, Scott 2015, para. 21). In 2015, the New York Times called him 'Belize’s most reviled homosexual and its most ostracized citizen, a man whom fundamentalists pray for and passers-by scorn,' further noting that '[h]is name is now a label, one used to remind other gays that they are sinners and public offenders' (Scott 2015, para. 8). Orozco's mother, Perla Ozeata, commented, 'Every time he walk the street, they promise to kill him [... w]in or lose the case, they’ll kill him' (Scott 2015, para. 22). For at least 'some time,' Orozco came to believe he would not outlive his middle age (Scott 2015, para. 34).
  15. By 20115, Belize Action were 'drawing thousands of believers to rallies that denounced the “homosexual agenda” [including the claim itself]' (Scott 2015, para. 20).
  16. The Bahamas decriminalised same-sex intercourse in 1991, though not via judicial review (Waites 2019, p. 392, James 2018a, p. 642).
  17. As of 2018, ten of thirteen former British colonies in the Commonwealth Caribbean still criminalised same-sex intercourse (Tisdale 2018, p. 100). However, it has been argued that the case's legal impact 'will be severely limited by the constitutional peculiarities of each country' (James 2018a, p. 644). For instance, while Belize's constitutional statute recognises a separate and enforceable right to dignity, those of peer countries do not (James 2018a, p. 644-645). Similarly, all statutes but those of Belize, Jamaica, and Trinidad and Tobago recognise a relatively limited, rather than expansive, right to privacy (James 2018a, pp. 646–648). Lastly, all statutes but those of Belize, Guyana, Jamaica, and Trinidad and Tobago recognise a similarly limited right to equal protection under the law (James 2018a, p. 651).

Short citations
  1. Orozco 2016, para. 9.
  2. Orozco 2016, para. 1.
  3. Scott 2015, para. 14.
  4. Tisdale 2018, p. 104.
  5. Orozco 2016, paras. 1.
  6. Orozco 2016, paras. 1-2.
  7. Orozco 2016, paras. 3, 5.
  8. Orozco 2016, paras. 3-5.
  9. Waites 2019, p. 393.
  10. Orozco 2016, para. 28.
  11. Orozco 2016, paras. 30-35, 38-39, 41.
  12. Orozco 2016, paras. 42-45.
  13. Tisdale 2018, pp. 104–105.
  14. Orozco 2016, paras. 49-50.
  15. Tisdale 2018, pp. 105, 107–108.
  16. Zeldin 2016, para. 9.
  17. Orozco 2016, paras. 51-52.
  18. Orozco 2016, paras. 53-55.
  19. Orozco 2016, para. 57.
  20. Orozco 2016, paras. 58-59.
  21. Orozco 2016, paras. 57-59, 62.
  22. Orozco 2016, paras. 1, 3.
  23. Orozco 2016, para. 3.
  24. Orozco 2016, para. 4.
  25. Orozco 2016, para. 5.
  26. Orozco 2016, paras. 63-67.
  27. Zeldin 2016, paras. 10-12.
  28. Tisdale 2018, pp. 105–106.
  29. Orozco 2016, para. 68.
  30. Tisdale 2018, p. 106.
  31. Orozco 2016, paras. 69-85.
  32. Orozco 2016, para. 86.
  33. Orozco 2016, paras. 90-96.
  34. Tisdale 2018, p. 107.
  35. Orozco 2016, paras. 93-94.
  36. Zeldin 2016, para. 13.
  37. Orozco 2016, paras. 97, 99.
  38. Orozco 2016, para. 100.
  39. James 2018a, p. 643.
  40. Tisdale 2018, pp. 108, 121.
  41. Tisdale 2018, p. 115.
  42. OC 2019, recto, right column.
  43. Scott 2015, para. 31.
  44. James 2018a, pp. 648, 660.
  45. Tisdale 2018, p. 117.
  46. Tisdale 2018, p. 118.
  47. Tisdale 2018, pp. 118–119.
  48. Scott 2015, para. 23.
  49. Scott 2015, para. 24.
  50. Lazarus 2020, p. 377.
  51. CLA 2018, para. 2.
  52. OC 2019, verso, left-right columns.
  53. OC 2019, verso, right column.
  54. HDT nd, sec. Summary second para.
  55. Blackstone 2019, paras. 2-4.
  56. HDT nd, sec. Summary third para.
  57. Orozco 2016, para. 13.
  58. Zeldin 2016, paras. 1, 6-7.
  59. James 2018a, p. 640.
  60. Tisdale 2018, pp. 100, 109.
  61. Scott 2015, paras. 4, 32.
  62. James 2018a, pp. 643, 660.

Full citations
  1. "Caleb Orozco v The Attorney General of Belize, et al". Claim No. 668 of 2010. Belize City: Supreme Court. 10 August 2016. Cited (2016) 90 WIR 161. Archived from the original on 28 November 2022.
  2. "Attorney General v Caleb Orozco and others". News, cases & analysis. London: Blackstone Chambers. 30 December 2019.
  3. "Orozco v Attorney General of Belize (Belize Court of Appeal, 29 October 2018)". News. Bristol: Commonwealth Lawyers Association. 22 November 2018.
  4. "What is Happening With the Caleb Orozco Case?" (Pamphlet). Belize City: Our Circle. 29 December 2019.
  5. "Belize: A constitutional challenge to the laws criminalising same-sex activity". What we do: Strategic litigation. London: Human Dignity Trust.
  6. Beirich, Heidi (10 July 2013). Dangerous Liaisons (Report). Montgomery, AL: Southern Poverty Law Center.
  7. Evans, Christine M. (2013). "Challenging "Unnatural Crimes": The Connection between LGBTI Rights and Gender-Specific Sexual Violence Laws in Belize". Northwestern Journal of International Human Rights. 11 (2): 189–206.
  8. James, Westmin R. A. (2018a). "In search of progress: the implications of Caleb Orozco v. AG of Belize for the Commonwealth Caribbean". International Journal of Human Rights. 22 (5): 640–663. doi:10.1080/13642987.2017.1408590. S2CID 149124492.
  9. James, Westmin R. A. (2018b). "Privacy in Commonwealth Caribbean law: emerging trends in the protection of sexual citizenship". Commonwealth Law Bulletin. 44 (2): 237–250. doi:10.1080/03050718.2019.1605918. S2CID 151152773.
  10. Lazarus, Latoya (2020). "Enacting citizenship, debating sex and sexuality: conservative Christians' participation in legal processes in Jamaica and Belize". Commonwealth & Comparative Politics. 58 (3): 366–386. doi:10.1080/14662043.2020.1773115. S2CID 221065852.
  11. Nicol, Nancy; Jjuuko, Adrian; Lusimbo, Richard; Mulé, Nick J.; Ursel, Susan; Wahab, Amar; Waugh, Phyllis, eds. (2018). Envisioning Global LGBT Human Rights: (Neo)colonialism, Neoliberalism, Resistance and Hope. London: University of London Press. ISBN 9780993110238. JSTOR j.ctv5132j6.
  12. Scott, Julia (24 May 2015). "The Lonely Fight Against Belize's Antigay Laws". New York Times Magazine (Sunday ed.). p. 24.
  13. Tisdale, Lauren (2018). "A Triumphant Victory for Gay Rights in Belize Lays the Foundation for a Domino Effect Throughout the Caribbean". Loyola of Los Angeles International and Comparative Law Review. 41 (1): 99–123. ISSN 0277-5417.
  14. Waites, Matthew (2019). "Decolonizing the boomerang effect in global queer politics: A new critical framework for sociological analysis of human rights contestation". International Sociology. 34 (4): 382–401. doi:10.1177/0268580919851425. S2CID 198731134.
  15. Zeldin, Wendy (19 August 2016). "Belize: Anti-Homosexuality Legal Provision Struck Down for First Time in Caribbean". Global Legal Monitor. Washington, DC: Library of Congress.

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