After several months of preparation and case management, the Court of Appeal has now started its deliberation on the appeal that the Government of Belize has brought against Caleb Orozco's victory in the Supreme Court in the Section 53 case.
Back in August of 2016, Chief Justice Kenneth Benjamin rendered a landmark judgment in Orozco's favor, making it legal for consenting adults to lawfully engage in same sex acts. Orozco was the first member of the local gay community to challenge the constitutionality of Section 53, pointing out that it violated his right to human dignity and privacy.
The Churches pressed the Government to appeal the case, and the compromise between the state and this social partner was that the Government would bring a limited appeal, and that the Catholic Church would appeal the substantive ruling. The Church formally withdrew from the case in March, and that left the Government to bring their appeal against the Chief Justice's decision to expand the meaning of the word "sex" in the constitution to also include sexual orientation.
The Court of Appeal finally scheduled the hearing of this case for today, but even before the arguments started, Caleb Orozco's legal team made a preliminary objection. They say that this appeal is academic, with no real effect on the Chief Justice's substantive ruling, and so the court should not entertain it. On the other hand, the Solicitor General asserts that the Chief Justice went too far and committed a judicial overreach when he expanded sex in the constitution to mean sexual orientation. The two sides spent about 2 hours arguing over that point, and when they were done, we were outside to speak with them on this objection from Orozco's team. Here's what they told us:
Westmin James - Attorney for Caleb Orosco
"The lower courts of the learned Chief Justice had found the law section 53 was in breach of a number of constitution of rights of Mr. Orosco including privacy, dignity, freedom of expression, equality on a number of grounds. The state has not appeal to most of that. They have agreed that the law was unconstitutional, thereby as on a number of basis. The attorney general's appeal was on the basis that he is saying, the court interpretation of one provision of the constitution, he believes is wrong and so we have made a preliminary objection that, that doesn't change anything, even if he wins, it doesn't change that the law is unconstitutional and from then the chief justice's judgment and for henceforth that 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 the Belize and so the appeal does not take us any further and we are making that point and there's a lot law where 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."
"What do you make of the attorney general's argument that the chief justice went too far and infringed on what should be the policy makers intervention and the people of Belize deciding whether or not they want sex to means sexual orientation in Belize's constitution?"
Westmin James - Attorney for Caleb Orosco
"Well, first of all, we have a lot of arguments surrounding that the learned trial judge was correct in his interpretation. What the attorney general has been arguing in this appeal is that the learned trial judge just applied international law in Belize without it being incorporated and we would have the chance this afternoon if it's not dismissed to explain that the learned trial judge never did any such thing."
Nigel Hawke - Solicitor General
"Well, the academic point that they have advance, the court has not ruled in it. Even the court came back and said that they have not quiet arrived at a position. Our position is simple. This is a public issue. Testament to the fact that it is a fundamentally and important issue, look how long the arguments took. It took us into the evening and if it is that these points are really academic, it should have been dealt with. I'm saying that there is some fundamental issue here that the court has to grapple with. You heard the comments of the court. There are several things going back and forth and these are public issues and one of the fundamental issues which we say is this a matter for the court to decide or 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 popular after the elected representatives."
As you heard, the panel of judges did not make a ruling on whether or not they will uphold the objection. Instead, they allowed the two sides to make full arguments on the Government's Appeal of the Chief Justice's expansion of sex in the constitution. Those arguments lasted for nearly 3 hours into the afternoon, and this appeal case concluded a half hour before the start of news. Here's what the two sides had to say about how they tried to convince the Appeal Court to see things from their perspective:
Nigel Hawke - Solicitor General
"Our fundamental issues that we are saying, was it was a bit of an overreach to a rule that sex was expanded to include sexual orientation because we are saying that there is certain constitution prescription - separation of powers being a fundamental one and even the courts have to be very careful or overstep its boundary in relation to interrupting the constitution so that was one of our first point. The other point is that, I think the ruling also tied the incorporation of the international covenant of civil and political rights. Where the court ruler, there was a acceptance of it. We are saying it flies in the face of what the CCJ has said, that these things should be incorporated into our domestic law and those things are left for the parliament. Those were our fundamental arguments. We listen to the effect that the courts are saying that courts ought to be very careful that they don't legislate really and the last point was in relation to section 12 of the constitution where we were saying, we don't think it was properly developed fundamentally."
Lisa Shoman - Attorney for Caleb Orosco
"The judges are the guardians of what the constitution means, it's their job to interpret the constitution and Belize in this instance had ratified the ICCPR in 1996. 1996 we made a decision to ratify this international treaty obligation and there's a long line of cases that say if you've ratify and you've upheld treaty obligations then those treaty obligations can and should if there's any ambiguity in the meaning can and should be examined, can and should be included for instance if you notice this section in the constitution does not say gender, it says sex and sex in all of the findings of the courts, in all of the world has been held to also include the idea of sexual orientation. In other words, the broad meaning of sex, the full meaning of sex should also include sexual orientation because otherwise they could have used the word gender. If they wanted to limit it to gender and their framers didn't use the word gender, they used the word sex and the constitution is a living document. So, no matter what was fundamentally meant in 1981, you have to look at it in light in what it would mean now."
Queen's Counsel Tim Ottey, from the UK, was also a part of the appeal, and he represented the interested parties in this case: the Commonwealth Lawyers Association, the Human Dignity Trust, and the International Commission of Jurists. Their arguments were aligned with those of Caleb Orozco's legal team.
The Court of Appeal has reserved its judgment to a date to be announced.