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The Criminalisation of Homosexuality in the Commonwealth Pt II: Shifting Sands?

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About The Author

Alasdair Maher (Guest Contributor)

Alasdair is a recent GDL graduate from BPP Law School, with a particular interest in the value of technology in transforming business. He is currently undertaking vacation schemes and in-house legal internships to inform and develop his future career path in law. Outside the law, Alasdair enjoys baking, reading, and learning languages.

©Diricia De Wet

This article is part of the 'Homosexuality in the Commonwealth' series, edited by Keir Baker.

One of the British Empire’s most significant legacies is the criminalisation of homosexuality across the Commonwealth. In recent years, in line with the global advancement of LGBT rights, the laws that enforce this in many Commonwealth countries have been subject of legal challenges. In a two-part series, Alasdair Maher examines the historical and imperial origins of the outlawing of homosexuality and analyses how the courts of different nations are approaching the issue.

Other articles from this series are listed at the end of this article.

The first article in this Keep Calm Talk Law series explored the legacy of discrimination created by the British Empire, documenting the historical origins of anti-homosexuality laws that still criminalise LGBT activity within 36 Commonwealth states today.

The fight against such laws by local LGBT advocacy groups has stepped up in recent years, with most of their efforts targeted at litigation. Indeed, unlike in Britain – where the legalisation of same-sex relations occurred through statute (the Sexual Offences Act 1967) – the argument for decriminalisation throughout the Commonwealth has most frequently occurred in the courts.

Throughout the litigation of anti-sodomy laws, arguments have centred upon the essential constitutional principles of law and governance – including the separation of powers, the rule of law and the morality of law – as local LGBT advocacy groups have sought to secure decriminalisation via the extension of constitutional rights. Their degree of success has depended heavily on how different courts have applied postcolonial legal systems to undo legacies of colonial legislation, and are reflections of the wider legal and constitutional makeup of each respective state.

In fact, recent decisions in this area fall into one of two essential constitutional scenarios. The first (occuring in Belize and Trinidad and Tobago) illustrates the valuable role of an independent judiciary – informed by its obligations under international human rights law – in providing a pathway to change. The second (occurring in India and Singapore) demonstrates the risk of political and social pressures effectively preventing the courts from upholding equal protection and privacy rights of minority persons.

With this in mind, this second article in this series examines the role of the courts in the future of anti-sodomy laws and the development of domestic constitutional law and international human rights law, by tracking the recent successes and failures of local LGBT advocacy groups in their attempts to advance the 'common value of equality’ for LGBT communities of the Commonwealth.

‘Tyranny of the Minority’: The Separation of Powers in Singapore and India

Following the establishment of international human rights bodies including the European Court of Human Rights (ECtHR) and the United Nations Human Rights Committee, the late 20th Century was witness to a new wave of LGBT advocacy, whereby lawyers relied upon the expansion of international human rights law to challenge the criminalisation of same-sex relations. Featuring claimants invoking new constitutional and international treaty rights to privacy, equality and dignity, successive cases throughout former colonial states reflect the development of a growing transnational legal discourse.

The initial precedent for decriminalisation was established within Northern Ireland by the ECtHR in Dudgeon v UK [1981], leading to a ‘domino effect’ across Britain’s former colonies. This included cases within Europe (Norris v Ireland [1988]; Modinos v Cyprus [1993]), Australasia (Toonen v Australia [1994]), Africa (NCGLE v Minister of Justice of South Africa [1998]), the Americas (Lawrence v Texas [2003]), and Asia (Roy v Secretary for Justice of Hong Kong [2005]; Pant v Nepal Government [2007]). Within each jurisdiction, the reading down of existing criminal codes, coupled with the enactment of new legislation to offer further protection to LGBT persons, reveal the lasting impact that local LGBT advocacy has had upon the international advancement of LGBT rights through the courts.

India: Promising Beginnings 

The first-instance decision of the High Court of Delhi in Naz Foundation v Government of NCT of Delhi [2009] appears to easily fit into this narrative. Having found Section 377 of the Indian Penal Code 1860 (IPC 1860) contrary to the Indian Constitution, Chief Justice Shah and Justice Muralidhar drew upon several key legal arguments often cited in favour of decriminalisation, including that:

  • Domestic case law confirms that the constitutional rights of life and liberty – here, under Article 21 of the Indian Constitution – effectively include within their scope the rights of dignity and privacy;
  • International jurisprudence confirms that the criminalisation of consensual same-sex relations – here, under Section 377 of the IPC 1860 – infringes upon the constitutional rights of dignity and privacy of LGBT persons – here, under Article 21 of the Indian Constitution;
  • International jurisprudence confirms that the right of health is fundamental to the right of life – here, under Article 21 of the Indian Constitution – and that the criminalisation of consensual same-sex relations infringes upon this right because it restricts successful public health intervention in LGBT communities affected by a higher risk of HIV/AIDS transmission;
  • International jurisprudence confirms that the right of equality – here, under Article 14 of the Indian Constitution – requires the ‘reasonable classification’ of criminal acts for the purposes of legislation. Where such a ‘classification’ is found unreasonable and arbitrary in relation to the objective of the legislation in question, such legislation infringes upon this right. Given that, in practice, Section 377 of the IPC 1860 was specifically applied to target the consensual same-sex relations of men who have sex with men (MSMs), it was clearly unreasonable and arbitrary;
  • International jurisprudence confirms that the prohibition of discrimination on grounds of sex – here, under Article 15 of the Indian Constitution – should be widely interpreted so as to include sexual orientation. Thus, criminalisation of same-sex relations infringes upon this right;
  • Popular morality (namely, public disapproval of same-sex relations) does not form valid grounds for the restriction of fundamental rights. Indeed, the advancement of constitutional morality – via the upholding of individual rights of minority groups – rather than popular morality, is the primary concern of the judiciary;
  • The separation of powers doctrine obliges the courts, where matters of ‘high constitutional importance’ such as ‘constitutionally entrenched human rights’ are concerned, to give lesser deference to the legislature in their exercise of judicial review. This is particularly so when it is necessary to protect ‘the fundamental rights of those who may dissent or deviate from the majoritarian view’.

In reaching their final verdict in Naz Foundation [2009], Chief Justice Shah and Justice Muralidhar paid particular attention to the value of ‘inclusiveness’, which they described as the ‘one constitutional tenet that can be said to be the underlying theme of the Indian Constitution’. It was this value of inclusiveness that formed the summative justification for their decision to read down Section 377 of the IPC 1860 in order to decriminalise consensual same-sex relations of adults in private.

India: A Backwards Step

Unfortunately however, the value of ‘inclusiveness’ so staunchly upheld by the High Court of Delhi in Naz Foundation [2009] was soon displaced by the Supreme Court of India in Koushal v Naz Foundation [2013], in a decision that marks the first time the judiciary of a Commonwealth state has effectively recriminalised homosexuality at common law.

The main point of distinction between the decisions in Naz Foundation [2009] and Koushal [2013] was the Supreme Court’s preference for a deferential approach to the separation of powers that upheld the superiority of the Indian legislature. As such, Justice Singhvi and Justice Mukhopadhaya advanced arguments including that:

  • The presumption of constitutionality is of essential importance when determining whether a law should be declared void. As such, the separation of powers requires ‘deference to the value of democracy that parliamentary acts embody [as] manifestations of the will of the people of India’.
  • In the absence of previous amendments to Section 377 of the IPC 1860 by the legislature –  ‘the representative body of the people of India’ – only a ‘clear constitutional violation’ will empower the courts in finding a law to be unconstitutional, not ‘the perception of society having changed as regards the legitimacy of its purpose and need’;
  • Despite there being ‘no uniform test…to classify acts as “carnal intercourse against the order of nature”’, and the plain meaning of the text validly applying to acts ‘irrespective of age and consent’, Section 377 of the IPC 1860 ‘does not criminalise a particular people or identity’, but ‘regulates sexual conduct regardless of gender identity and orientation’ ;
  • Indian domestic legislation confirms that the application of Article 14 of the Indian Constitution provides for equality of ‘all persons similarly circumstanced’. The Indian State can therefore apply the ‘reasonable classification’ of persons ‘for the purposes of legislation’, provided that the chosen classification is ‘founded on an intelligible differentia [which are of] rational relation to the object’ of the legislation. Thus, Section 377 of the IPC 1860’s classification of persons who ‘indulge in carnal intercourse against the order of nature’, as opposed to those who ‘indulge in carnal intercourse in the ordinary course’, constitutes a distinct class in rational relation to the prescribed offence. This offers no grounds for declaring Section 377 of the IPC 1860 as unlawful on grounds of irrationality or arbitrariness;
  • Evidence provided to the High Court was ‘insufficient’ to establish that Indian LGBT persons ‘are being subjected to discriminatory treatment either by the State or its agencies or society’. Furthermore, any such discriminatory treatment is neither ‘condoned by [nor] a reflection of the vires of’ Section 377 of the IPC 1860: any misuse of it by state authorities is only ‘a relevant factor for the Legislature to consider’;
  • With the LGBT community being ‘a miniscule fraction of the country’s population’, with less than 200 prosecutions under Section 377 of the IPC 1860, there cannot be sound basis for it to be found unlawful;
  • The application of international law in order ‘to protect the so-called rights of LGBT persons…cannot be applied blindfolded for deciding the constitutionality of the law enacted by the Indian legislature.’

In finding the decision in Naz Foundation [2009] ‘legally unsustainable’, the Supreme Court in Koushal [2013] offered little analysis or engagement with several key arguments synthesised by Chief Justice Shah and Justice Muralidahr, including the issues of popular and constitutional morality, the protection of minority rights in majoritarian democracy, and the scope of application of Article 15 and Article 21 of the Indian Constitution.

This arguably reflects a judicial failing – in the absence of true socio-political independence and neutrality – to enforce the application of the ‘rule of law’ to the operations of the state. Instead, as Arop Surendranath argues, the Supreme Court of India reached:

[A] thinly veiled political decision [that damages its] credibility as a counter-majoritarian institution.

Singapore: A Continuation of the Regressive Path

This troubling precedent – and the arguments underlying it – were taken to new extremes by the Supreme Court of Singapore. In Suang v Attorney General [2014], Justice Leong relied upon similar legislation - the Singaporean Constitution and Penal Code being directly modelled on their Indian counterparts - and to similar arguments concerning separation of powers, equality before the law, and the rights of the minority to life and liberty.

Placing particular emphasis upon the importance of the separation of powers and the presumption of constitutionality of laws passed by the legislature, Justice Leong identified the courts’ exclusive role as to determine the constitutionality of Section 377A of the Penal Code by procedural, in lieu of substantive, application of the ‘reasonable classification’ test under the right of equality contained in Article 12(1) of  the Singaporean Constitution. The issue of discrimination was thus not a valid concern to the courts in application of this test if – as Justice Leong found – the identification of MSMs was based on ‘intelligible differentia’ under Section 377A of the Penal Code, and of ‘rational relation’ to the purpose and object of the legislation.

In summary, it was concluded that the issue of discrimination against MSMs was not a legal argument, but a matter of social policy outside the remit of the court. To hold otherwise would – in the view of Justice Leong - encroach upon the separation of powers, and result in the courts becoming ‘mini-legislatures’.

In Suang [2014], Justice Leong’s ‘objective’ analysis of the arguments in support of decriminalisation reveal a judicial perspective that frustrates any possible application of the rule of law to protect LGBT rights within Singapore, in his final decision determining that:

  • The rights of equality and equal protection contained in Article 12(1) of the Singaporean Constitution are not substantive, but ‘more declaratory and aspirational in nature’;
  • Because Article 12(2) of the Singaporean Constitution - which provides ‘specific legal criteria’ for grounds of non-discrimination – excludes reference to ‘sex’, ‘sexual orientation’, or ‘gender’, it must be narrowly construed. It may only be revised by the Singaporean legislature so as to reflect ‘the prevailing social mores as well as aspirations of Singapore’s society’;
  • International law and treaty obligations form a separate legal system to domestic law in Singapore, and thus cannot have the effect of providing new grounds of discrimination;
  • Arguments on the absence of societal harm in consensual adult same-sex relations in private, on sexual orientation as an immutable biological identity, and on the role of the courts in protecting individual minority rights are all ‘extra-legal’ arguments beyond the remit of the courts;
  • The legislature possesses the mandate to ‘promulgate laws which reflect as well as preserve societal morality’: should such laws ‘discriminate against… or deprive [persons] of their fundamental rights’, this matter is exclusively for the legislature to consider;
  • The argument that the enforcement of standards of societal morality constitutes the ‘tyranny of the majority’ – thereby potentially violating the constitutional rights of minority persons – can be countered by the argument that the enforcement of the protection of such minority rights would equally constitute the ‘tyranny of the minority’.

By upholding the persecution of LGBT persons as lawful, the decisions of the Supreme Courts of India and Singapore effectively promote the primary power of the domestic legislature over both the courts and the constitution, and refute the value of international jurisprudence. It is notable that, as explored in the first article of this series, both cases coincide with the contemporaneous enactment of anti-gay legislation in other Commonwealth states, further contributing to popular narratives of LGBT rights, and persons, as neocolonial imports, standing in stark contradiction to domestic societal values in need of protection by both legislature, and judiciary.

With neither decision containing any explicit reference to, or consideration of, the rule of law, it has taken the efforts of subsequent advocacy groups within other jurisdictions to establish positive precedents that uphold the role of the courts in safeguarding minority constitutional rights, in the manner originally envisaged by Chief Justice Shah and Justice Muralidhar in Naz Foundation [2009].

Protecting Minority Rights: The Rule of Law in Belize and Trinidad & Tobago

The recent decriminalisation of homosexuality within former Commonwealth states in the Caribbean and West Indies has provided newfound hope for the renewed development of domestic and international jurisprudence in favour of protection of LGBT rights. Through active judicial engagement with the questions of separation of powers, the supremacy of constitutional law, and the role of legislature and judiciary in matters of societal morality and minority rights, two key cases have provided valuable precedent for other Commonwealth jurisdictions in their future consideration of this issue.

Belize: A Second Chance at the Right Approach?

In Orozco v Attorney General of Belize [2016], the Supreme Court of Belize provided a cogent analysis for the reading down of Section 53 of the Criminal Code of Belize so that it no longer applied to consensual adult same-sex relations in private. In finding grounds for discrimination of LGBT persons by violation of rights of dignity, privacy, and equality under the Belizean Constitution, Chief Justice Benjamin’s analysis drew heavily upon existing international jurisprudence regarding these same violations, and approved several arguments that bear  particular similarity to those established in Naz Foundation [2009].

Of particular interest, however, was Chief Justice Benjamin’s consideration and development of the scope of constitutional law and judicial review, establishing arguments for the role of the courts in upholding the rule of law and minority rights, including that:

  • The argument that judicial findings of constitutional violations of the Claimant’s rights would constitute adjudication on moral issues, and thus infringe upon the remit of the legislature is incorrect: the courts are – by mandate of the Belizean Constitution  the ‘designated guardian of the rights’ thereunder, and ‘cannot shirk from such responsibility by asserting that any change to legislation is matter best left to the legislature’;
  • The Caribbean Court of Justice has confirmed that ‘the streams of domestic law and international law ought to flow in the same direction in establishing fundamental norms applicable to the rights conferred’ by the Belizean Constitution;
  • In absence of evidence of real harm to ‘satisfy the justification of public morality’ as a limitation to certain constitutional rights, the courts ‘cannot act upon prevailing majority views’, and instead must apply the provisions of the Belizean Constitution;
  • The courts must apply a ‘liberal and purposive interpretation’ to the ‘plain language’ of the Belizean Constitution;
  • Despite being framed in gender neutral language, Section 53 of the Criminal Code of Belize is ‘discriminatory in its effect’, because an LGBT person is ‘rendered a criminal by virtue of his homosexuality’.

Contrary to the decisions in Koushal [2013] and Suang [2014], the reasoning of the Supreme Court of Belize in Orozco [2016] affirms the role of the rule of law in determining constitutional rights. In effective dismissal of the argument of public morality as ‘extra-legal’ issue and thus outside the purview of the courts, the scope of the judiciary’s power is effectively advanced beyond undertaking mere procedural review of the ‘reasonable classification’ test, to the purposive analysis of the ‘reasonable justification’ and effect of legislation. This, in essence, creates a precedent that permits the courts to undertake the substantive analysis of the criminalisation of minority persons, allowing for the protection of minority rights in accordance with international jurisprudence.

It is arguable, however, that Chief Justice Benjamin was proferred a favourable environment to reach this decision: the failure of Counsel for the defence to raise arguments concerning the ‘presumption of constitutionality’ in favour of Section 53 of the Criminal Code of Belize removed a key argument in favour of judicial deference, allowing for a more activist approach in reaching his final judgement.

Trinidad and Tobago: Solidifying the Precedent

It is thus that the decision of the High Court of Trinidad and Tobago in Jones v Attorney General of Trinidad & Tobago [2018] is of particular interest. Justice Rampersad was confronted with the ‘presumption of constitutionality’ as an argument of potential hindrance to the constitutional challenge of anti-buggery laws contained within Sections 13 and 16 of the Sexual Offences Act 1986 (SOA 1986). In his approach to this issue, Justice Rampersad extended his analysis to a wider consideration of the application of concepts of Parliamentary supremacy and the presumption of constitutionality within postcolonial jurisdictions, and the comparative application of international jurisprudence, proposing that:

  • The presumption of constitutionality of legislation is a legal fiction which stems from the foreign concept of Parliamentary supremacy;
  • The presumption of constitutionality, as a legal fiction, should not override ‘constitutionally protected rights’, and that the supremacy of Parliament ought not to apply within a jurisdiction of constitutional supremacy;
  • By electing to ‘replace’, and not ‘re-enact’, colonial buggery laws with the SOA 1986, Parliament had effectively voided the application of the presumption of constitutionality, having consciously identified the original colonial laws as unconstitutional;
  • By enacting the SOA 1986, Parliament had consciously elected to derogate from the rights of citizens contained in Section 4 and Section 5 of the Trinidadian Constitution through a majority vote, as permitted under Section 13 of the Trinidadian Constitution;
  • In consideration of whether that derogation is ‘reasonably justifiable’ in a democratic society under Section 13(1) of the Trinidadian Constitution, the supremacy of the Trinidadian Constitution should provide for the burden of proof to be placed upon Parliament as lawmaker, rather than the challenging citizen, ‘to justify its deliberate decision to derogate from its duty’;
  • The legislative objectives of maintaining societal family values, and the clarification and extension of the law, are not reasonable grounds of justification for restriction of fundamental rights. Indeed, the changing norms of the modern family unit demonstrate that the former rationale is of insufficient importance to justify maintaining laws ‘over a minority to try to enforce a portion of society’s morality over it’;
  • To avoid exclusive reliance upon comparative analysis of international jurisprudence, and the risk of subjective bias in determining accepted international norms, the local experience and socio-political context of domestic legislation and constitutional law must be given due deference.

By reframing the jurisprudential debate regarding the separation of powers in order to reinforce the primacy of the entrenched Trinidadian Constitution, and by treating the presumption of constitutionality of legislative action as a colonial import that now lacks applicability, the decision in Jones [2018] strengthens the position of the judiciary as arbiters of the rule of law, providing renewed jurisprudential force towards the future protection and extension of constitutional minority rights of LGBT persons. In his final consideration of the historical persecution of minority groups, Justice Rampersad’s words carry particular significance:

It is unfortunate when society in any way values a person or gives a person their identity based on their race, colour, gender, age or sexual orientation... That is not the sum total of their value to society or their value to themselves... To now deny a perceived minority their right to humanity and human dignity would be to continue this type of thinking, this type of perceived superiority based on the genuinely held beliefs of some.

In summary, Justice Rampersad’s judgment adds weight to the international jurisprudential narrative in advancement of LGBT rights and decriminalisation of homosexuality, and renewed focus on the analysis and application of domestic constitutional law in order to advance such rights. Considered alongside the decision in Orozco [2016], both cases offer a promising outlook for the future efforts of LGBT advocacy groups across both the Caribbean and former Commonwealth nations on a global scale.

Conclusion

It is undeniable that the realities of everyday discrimination against LGBT persons in several Commonwealth jurisdictions far outweigh the question of decriminalisation. The present-day experiences of LGBT communities of the Commonwealth - such as employment discrimination, acts of state-sponsored violence, and restriction of access to HIV/AIDs health support - reflect the limitations of the concept of equality as the ‘common value’ of the Commonwealth. Where such discrimination exists, it is unfortunate that the courts have oftentimes sought to re-define the legal scope of the right to equality for LGBT persons, in order to accord with the societal scope of the right to equality for such persons.

Importantly however, the efforts of LGBT advocates have provided valuable precedent for future litigation against anti-homosexuality laws across the Commonwealth which may, in turn, allow for further advancement of LGBT rights in accordance with domestic constitutional law. Indeed, the promise of further progress may be realised in the near future: in Kenya, following the decision of COI v Chief Magistrate of Ukunda [2018] that established the police’s use of anal examinations as unconstitutional, a further decision regarding the lawfulness of anti-sodomy laws under Section 165 of the Kenyan Penal Code is expected later this year.

Furthermore, in India the recent decision of the Supreme Court in Puttaswamy [2017] concerning the protection of privacy rights under the Indian Constitution, including sexual orientation, has left the original ruling in Koushal [2013] in doubt, to the extent that the Supreme Court have confirmed that the decision will be open for reconsideration in July 2018 following curative petition.

Ultimately, the success in Orozco [2016] and in Jones [2018] shows the promise of a new wave of progress for LGBT communities of the Commonwealth. As Eric Gitari –  one of the lawyers behind the success of Ukunda [2018] – has explained, it is through the courts that LGBT persons have newfound hope for a future of true equality:

This case has given people confidence, to see what’s possible… to use knowledge that is constructed by institutions… to push against all these injustices against homosexuals, to create litigation and to claim justice.

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Tagged: The Commonwealth

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