Procedural Posture
The authorities charged Thomas McCoskar and Dhirendra Nadan with having or permitting carnal knowledge of the other against the order of nature, in violation of Section 175 (a) and (c) of the Fijian Penal Code. They were also charged with gross indecency between males, in violation of Section 177. The magistrates’ court sentenced each to two years’ imprisonment (twelve months for each offence). Both parties appealed their convictions and sentences.
Facts
Thomas McCoskar, an Australian tourist, visited Fiji for two weeks in March and April of 2005, during which time he and Dhirendra Nadan had a consensual sexual relationship. Suspecting that Nadan had stolen AUD $1500 from him, McCoskar filed a complaint with the police and then checked in for his return flight to Australia. Before McCoskar’s departure, airport police interviewed Nadan, who explained that McCoskar agreed to pay him modelling fees, as he intended to post photographs of their consensual sex on the internet. Nadan claimed that he had not been paid. The police detained McCoskar before his flight departed. Under questioning, McCoskar admitted to his sexual relationship with Nadan and to the existence of the photographs, which were seized from his digital camera.
Issue
Whether Sections 175(a) and (c) and 177 of the Fijian Penal Code violated the constitutional guarantees of privacy and equality.
Domestic Law
Fiji Penal Code, Section 175 (“unnatural offences”: any person who (a) has carnal knowledge of any person against the order of nature; … or (c) permits a male person to have carnal knowledge of him or her against the order of nature is guilty of a felony, and is liable to imprisonment for fourteen years with or without corporal punishment); and
Section 177 (“indecent practices between males”: any male person who, whether in public or private, commits any act of gross indecency with another male person, or procures another male person to commit any act of gross indecency with him … is guilty of a felony, and is liable to imprisonment for five years, with or without corporal punishment).
Constitution of Fiji, Section 37 (every person has the right to personal privacy including the right to privacy of personal communication, subject to such limitations prescribed by law as are reasonable and justifiable in a free and democratic society).
International Law
International Covenant on Civil and Political Rights, Article 17.
Dudgeon v. the United Kingdom, ECtHR, 1981 (finding that the sodomy laws of Northern Ireland violated the right to privacy under the European Convention).
Toonen v. Australia, United Nations Human Rights Committee, 1994 (finding that the sodomy laws of Tasmania violated thrights to privacy and non-discrimination under the ICCPR).
Comparative Law
Bernstein v. Bester, Constitutional Court of South Africa, 1996 (right to privacy should be construed in a way that recognises that all individuals are members of a broader community and are defined in relationship to that community).
Bowers v. Hardwick, United States Supreme Court, 1986 (upholding State law criminalising sodomy against constitutional challenge; dissent of Justice Blackmun).
Egan v. Canada, Supreme Court of Canada, 1995 (establishing that sexual orientation constituted a prohibited ground of discrimination under Section 15 of the Canadian Charter of Rights and Freedoms).
Lawrence v. Texas, United States Supreme Court, 2003 (affirming that same-sex sexual conduct between consenting adults was part of the liberty protected by the substantive due process clause of the 14th Amendment to the federal Constitution and striking down Texas’ sodomy law).
National Coalition for Gay and Lesbian Equality v. Minister of Justice, Constitutional Court of South Africa, 1998 (finding unconstitutional statutory and common law offences of sodomy).
Reasoning of the Court
For the State, the Director of Public Prosecutions argued that constitutional rights could be limited in the public interest and on moral grounds; and that, because homosexuality was “abhorrent” to a “religious and conservative State”, limits could be imposed on the rights to privacy and equality. In an amicus brief, the Attorney General argued that rights to equality and privacy were validly limited in the interest of morals. In its amicus brief, the Human Rights Commission argued that these provisions of the Penal Code were unconstitutional and needed to be struck down.
The Court first observed that the “sodomy” laws traced their origin back to England and had been copied throughout the British Empire.
Concerning equality, the appellants argued that clauses (a) and (c) of Section 175 were discriminatory as they “applied only to gay men and criminalised their primary expression of sexuality”. The Court found that, although technically Section 175 was gender neutral and applied to men and women of any sexual orientation, in application it was not neutral. Counsel for the State could not offer any evidence showing that heterosexual couples had been prosecuted for consensual private acts “against the order of nature”. The Court therefore accepted the argument that Section 175 offences were “selectively enforced primarily against homosexuals”.
Turning to Section 177, which explicitly applied only to males, the Court held: “What the section does is to make certain conduct between males criminal, while leaving unaffected by the criminal law comparable conduct when not committed exclusively by males”. The section was thus discriminatory.
The Court acknowledged that the preamble to the Constitution emphasised the Christian heritage of Fiji but rejected the contention that Fiji was based solely upon Christian values. The Court also recognised that many Fijians genuinely and sincerely believed that any change in the law “to decriminalize homosexual conduct would seriously damage the moral fabric of society”. The Court found such views relevant for the purpose of constitutional interpretation. However, the shock or offence to members of the public could not, on its own, validate unconstitutional law.
The Court stated that, “at the core of the appellants’ case is the principle that the State has no business in the field of private morality and no right to legislate in relation to the private sexual conduct of consenting adults”. The Court quoted from the Wolfenden Committee Report: “[T]here must remain a realm of private morality and immorality, which is, in brief and crude terms, not the law’s business”. It then reviewed the privacy-based jurisprudence of the European Court of Human Rights and the United Nations Human Rights Committee. Privacy, reasoned the Court, was not just the right to be left alone but also the right to “express your personality and make fundamental decisions about your intimate relationships without penalization”.
Guided by the Constitutional Court of South Africa’s jurisprudence on privacy, the Court stated: “The way in which we give expression to our sexuality is the most basic way we establish and nurture relationships. Relationships fundamentally affect our lives, our community, our culture, our place and our time. If, in expressing our sexuality, we act consensually and without harming one another, invasion of that precinct risks relationships, risks the durability of our compact with the State and will be a breach of our privacy.”
The Court then noted “a definite trend towards decriminalization of consensual adult homosexual intimacy”. Privacy, the Court reasoned, should include “the positive right to establish and nurture human relationships free of criminal or indeed community sanction”. The criminalisation of private consensual adult sex acts was neither a proportionate nor a necessary limitation.
McCoskar and Nadan v. State, High Court of Fiji at Suva (full text of judgment, PDF)
