The case of Caleb Orozco versus the Attorney General wraps up in the Supreme Court

Comment are off

Chief Justice Kenneth Benjamin this afternoon reserved judgment in the case of Caleb Orozco vs. The Attorney General of Belize after final submissions by Eamon Courtenay, Senior Counsel representing the church and a rebuttal from lead counsel for Orozco.   This morning Courtenay expanded on yesterday’s submissions in which he contended that Orozco, after UNIBAM was dropped from the case as a claimant, had failed to re-establish standing on the basis of his personal situation as an admitted homosexual. He spoke to the media today.

Eamon Courtenay – Senior Counsel representing the Church:
vlcsnap-2013-05-10-20h35m07s206I want to start first of all, to say on behalf of my client and certainly as President of The Bar and as an attorney practicing and involved in this case that I categorically condemn any threats or any actual violence to Mr. Orozco that has been occasioned by this case. It has absolutely no place in our democracy and our tradition and I condemn it in no uncertain terms. Having said that on the question of standing; the law is very clear, that you cannot use Section 20 of the Constitution to bring a case as a test case and that is exactly what we have here. The truth of the matter is that this claim was actually brought by UNIBAM and Mr. Orozco and if you look at the affidavit, you’ll see that most of the affidavit is about UNIBAM and not about Mr. Orozco. Once UNIBAM was struck off as a claimant, it then left Mr. Orozco’s affidavit with very little evidence about a personal prejudice that he was being affected by. In the absence of that, the cases are very clear, that you cannot bring a claim under the Cons tuition. We relied on cases and I heard Mr. Hamel-Smith in reply criticizing me for the submission of making it late, but I think he will understand that that is the law and whether I make it now or yesterday, that is the law. He has no standing in this claim. The truth of the matter is that the court is not an academic institution. It is not a place where you come and ask for advice or opinion, for example the International Court of Justice. You have to suffer a right, you have to suffer a prejudice and when that happens to you then you come to court. All the case that were relied on by them, except the ones that came from Singapore and I distinguished that because they don’t have an equivalent to our Section 20 and they said in that case that the mere existence of the provision on the law is enough. They don’t have Section 20. Our Section 20 says very clearly says that you have to have a right that is being contravened, is likely to be contravened or has been contravened in relation to you. So it is not an academic question and if Mr. Orozco cannot prove that the Police have threatened him, that they have arrested him, that there is a likelihood that he is going to be prosecuted or arrested or somehow prejudiced by this law, then he cannot have standing. The proper place for him to seek redress is in the National Assembly; seeking to get the legislators to change the law on the matter. I made the submission to the Court this morning that all the evidence from Mr. Orozco, all the evidence, document after document, shows representations to the National Assembly, asking the National Assembly and the Government to change the law and we cited responses from the Government saying that they are not prepared to do it. So what I told the Court if that the claimants are upset about that and they have come to the Chief Justice and asking the Chief Justice to lash and discipline the legislators, because the they are not doing what Mr. Orozco wants – that has no place in our democracy. When it comes to law making, when it comes to defining what is a criminal offense in Belize, that is determined by the National Assembly and not the Supreme Court.

Mike Rudon – Reporter:
Can you tell us what you feel now about your party’s case? With all the arguments wrapped up, what’s your feeling?

Eamon Courtenay:
Well I think it’s exactly where we started, which is first of all, the church has a very important role to play when it comes to discussing public morality and regardless of how loud they shout it in the court, that is provided in Section 92 of the Constitution and the evidence presented by the Court as I indicated to the Judge has nothing contradicting. There is not a single piece of evidence contradicting the evidence of the Court on the question of public morality. So the church has been consistent. The church’s view is that this is a matter of social policy, of health policy, or public morality that ought to be settled by the Legislator and the Executive in consultation, not being forced on anyone by the court. We expect that the Chief Justice is going to consider all the evidence. We believe that at the end of the day, Justice will be done. Whatever it is and I don’t want the impression to be given as I understand it has been given in some quarters in the media that the church is insensitive or intolerant to the rights to gay people, lesbians or transgender people. I submitted quite carefully and clearly to the Court that in fact, one of the most tolerant entities in our democracy is in fact that church and so we are understanding of Mr. Orozco’s position and in fact Mr. Orozco is to be praised for having raised this issue. The point is that he has raised it in the right forum.

Mike Rudon:
In some quarters out here, they have said that the claimant is seeking to strike out Section 53 completely and that will leave somewhat of a vacuum in terms of there have been talks about our children being targeted and that type of thing. While, according to Mr. Hamel-Smith in the Court, they are only looking at consensual sex between two persons of the same sex not being illegal, not being able to be penalized. Could you clarify that for us?

Eamon Courtenay:
The reason you are not clear about it is because their case isn’t clear and I have pointed that out to the Chief Justice. In fact, they have presented the Court with four options; the one option that they have not presented the Court with is striking down Section 53 completely. Once that is off the table, the question is what types of sexual practices are constitutional and what are not? That is why they have to give the Court four options to choose from and the point that we are making is once you move away from an absolute challenge to the Section 53 and say to the Court, I am giving you a menu, and the example I gave to the Court was that this is a very nice steak and I am giving you how you want it? Rear? You want it medium rear or you want it well done? They are giving four options to the Chief Justice, asking him to choose how he likes his steak. The Constitution precludes that type of operation by a Court. They should take those four examples, those four options to the Government, to the Legislature and say – We advocate for one or two or whichever and have the Legislature choose it. So I think that their case is fundamentally flawed by contending that the Court has an option, that the Court can choose which steak it likes. That is not the way our democracy works.

Aaron Humes – Reporter:
Do you see this being settled at the House? Or at the Court of Appeal or the CCJ, depending on how the case goes?

Eamon Courtenay:
Well I don’t know what the claimant is going to do once they lose.

Senior Counsel Lisa Shoman, attorney for Caleb Orozco,  told us that her client had no intention of deliberately incriminating himself in this case but that he did his best to establish standing.

Lisa Shoman – Senior Counsel:
vlcsnap-2013-05-10-20h35m53s129I think we feel very strongly on behalf of the Claimant team, that not only is the Claimant properly where he should be, but that he has put forward a very clear, strong, and compelling case.  As Mr Hamel-Smith clearly pointed out, if you read Mr. Orozco’s affidavit, it is clear, it has all the evidence.  The only thing Mr Orozco hasn’t done is to incriminate himself criminally in an act, but he was very clear about who he is, and about his standing to bring the claim.

A decision in the historic case is due in July.

vlcsnap-2013-05-10-20h56m35s54Earlier this week, attorney challenging the Belize sodomy laws, Queen’s Counsel Lord Peter Goldsmith, argued that the Belize church’s position on the sodomy laws, contradicts the Vatican’s teaching on the issue. There was much back and forth over his statements between the claimant’s Caleb Orozo’s lawyers and the church and its lawyers outside of court. And today, the Catholic Church in Belize issued a release, expressing their outrage with Goldsmith’s assertion. What Goldsmith referred to was a 2008 statement made by the Holy See (Vatican) at the United Nations, which reads “The Holy See appreciates the attempts made in [the declaration] to condemn all forms of violence against homosexual persons as well as urge states to take necessary measures to put an end to all criminal penalties against them.” The Catholic Church in Belize argues that”The statement was referring to violence or discriminatory laws based on a homosexual’s declared orientation or feelings, as distinct from homosexual acts.  This is a distinction which homosexual activists, including the claimants in the UNIBAM case, repeatedly ignore.” The church says that this distinction was further clarified in a subsequent statement by the Holy See at the United Nations in 2011, “For the purposes of human rights law, there is a critical difference between feelings and thoughts, on the one hand, and behavior, on the other. A state should never punish a person, or deprive a person of the enjoyment of any human right, based just on the person’s feelings and thoughts, including sexual thoughts and feelings. But states can, and must, regulate behaviors, including various sexual behaviors. Throughout the world, there is a consensus between societies that certain kinds of sexual behaviors must be forbidden by law. The statement by the Catholic Church in Belize, ends by saying “The Belize Catholic Church condemns the attempts by the foreign interested parties in the UNIBAM case to deliberately mischaracterize Church teaching and to impose a new morality through judicial activism.”  Queen’s Counsel Lord Peter Goldsmith is representing three international organizations, who are interested parties on behalf of Caleb Orozco, in the suit against the Attorney General of Belize.

Section 53 of the Criminal Code currently demands a ten-year prison sentence for any person who contravenes its provision against carnal intercourse against the order of nature with any other person or animal. Assuming that Caleb Orozco is victorious in his case before the court, the law would need to be changed? But how? You already heard what Senior Council for the church had to say on that matter. Here is what the other side had to say.

Christopher Hamel-Smith – Lead Counsel for Caleb Orozco:
vlcsnap-2013-05-10-21h21m01s2We’re saying that Section 53 of the Act is inconsistent with the Constitution to the extent, but only to the extent,  that it applies to consenting sex between adults in private.  We’re not asking for anything for anything further than that.

Lisa Shoman – Senior Counsel:
I’m sorry to hear that, because the case has never been about striking down Section 53 in its entirety.  The case has always been about dealing with the private lives of consenting adults, nothing more.  The sections having to do with children would still stand, protection of children, protection of people abusing animals should and will still stand.

Eamon Courtenay – Senior Counsel representing the Church:
The example I gave to the Court was like “Dis ah one very nice rib-eye steak, an I di give you.  How you want it? Rare, you want it medium rare, you want it medium well, or you want it well done?” They are giving four options to the Chief Justice, asking him to choose how he like his steak.  They should take those four examples, those four options, to the Government, to the Legislature and say, “We advocate for one, or two, or whichever, and have the Legislature choose it.

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