Landmark Fiji High Court Case Invalidates Laws Criminalising Homosexual Sex

The Fiji Constitution contains a strong Bill of Rights, based on the South African Constitution. Article 37 of the Constitution safeguards rights to privacy, while Article 38 specifically provides for non discrimination including on grounds of sexual orientation. Article 43(2) of the Constitution requires that the rights enshrined in the Fijian Constitution are construed in light of public international law.

In a judgment calling heavily on international and comparative law to interpret the relevant Fijian constitutional provisions, Judge Winter found that sections of the Penal Code were inconsistent with the Constitution of Fiji and were therefore invalid to the extent that they criminalise private consensual sexual conduct.

In respect of the right to privacy, Judge Winter adopted a broad construction of privacy in line with international law namely that the right to privacy does not just mean freedom from unwarranted State intrusion, but includes “the positive right to establish and nurture human relationships free of criminal or indeed community sanctions”. The State argued that limitations on the right to privacy – in this case, criminalisation of sexual conduct – were justified by reference to morality. While recognising that the law provides limits on privacy, the judge found that criminal sanctions restricting sexual acts on the grounds of morality were “wholly disproportionate to the right to privacy”. He found “this right to privacy so important in an open and democratic society that the morals arguments cannot be allowed to trump the constitutional invalidity… Criminalising private consensual adult sex acts… is not a proportionate or necessary limitation”.

With respect to equality, Judge Winter adopted the view propounded by Sachs SJ in the landmark South African Constitutional Court case of the National Coalition for Gay and Lesbian Equality and Another v The Minister for Justice and Others that equality and privacy rights cannot be separated in the circumstances of the case because they had been violated simultaneously by the laws. He found that in this case, the Penal Code both overtly and in its selective enforcement discriminated against homosexuals, and therefore violated Article 38 of the Bill of Rights.

In conclusion, the judge emphasised that the Constitution of Fiji requires that the law “acknowledges difference, affirms dignity and allows equal respect to every citizen as they are… The State that embraces difference, dignity and equality… creates a strong society built on tolerant relationships with a healthy regard for the rule of law”.

The judgment reinforces that legal prohibitions on the sexual conduct of homosexuals violate international human rights law, and are out of step with the international trend towards decriminalisation. It also firmly underlines the limits on States' margin of appreciation in legislating for morality, reiterating the jurisprudence of various national and regional courts which have held that moral and religious disapproval of gay sex alone cannot warrant the application of penal sanctions when only consenting adults in private are involved. Finally, the way in which the judgment invokes the International Covenant of Civil and Political Rights, and decisions of the United Nations' Human Rights Committee, as well as comparative jurisprudence, demonstrates how this growing body of law can be effectively utilised by judges to guide the interpretation of critical concepts such as privacy and equality in their domestic jurisdictions. It is hoped that the judgment will lead not only to greater recognition of equal rights of gay and lesbian people in Fiji, but in the Pacific and beyond.

Read the full judgment here.