An
Imaginary Gay Rights Trial in the High Court of Anguilla
Matthias Charles v Attorney-General of Anguilla
[2016 High Court.]
[1] Judgment: A few weeks ago I described a scenario which is
a variation on a High School moot from Grenada.
I posed the question then, if, instead of this being a Grenadian
scenario it was Anguillian one, and if this were an Anguillian case brought
under the Anguilla Constitution, and if you were counsel arguing for one of the
parties, what would your submissions likely be?
I promised then that after a decent interval to receive your
submissions, I would deliver judgment.
Well, shame on you, no one offered any submissions. So, I have had to do the research
myself. Here, then, is my “judgment”.
The
Facts
[2] Matthias
Charles was a male Anguillian who emigrated to Canada and took out Canadian
citizenship. Greyson Williams is also a
male Anguillian who similarly lived in Canada.
Matthias and Greyson were married in Canada in August 2005, shortly
after same-sex marriages were legalised there.
Subsequently, they frequently visited Anguilla, and jointly purchased
property in here.
[3] Greyson died
in Canada in January 2016, and at his request was buried in Anguilla next to
his parents in the St Mary’s Anglican Church Cemetery in The Valley.
[4] Matthias
Charles applied to the Registry for a Grant of Letters of Administration to
Greyson’s estate. He exhibited a copy of
his marriage certificate evidencing his marriage to Greyson. The Registrar refused to process the
application on the basis that marriage in Anguilla is only recognised as
between a man and a woman.
[5] Matthias
filed a Constitutional Motion claiming that the Registrar’s decision violates
section 13(2) of the 1982 Constitution of Anguilla. He claims that he is being treated in a
discriminatory manner based on his sex.
He seeks a declaration that the Registrar’s decision violates section
13(2) of the Constitution.
The Issue
[6] The first
issue argued by the parties was whether the limitation in the Marriage Act
of the right to marry to a man and a woman prevents a same-sex surviving spouse
from applying for a Grant of Letters of Administration in Anguilla.
[7] The second
issue argued was, if the limitation (in the Marriage Act) of marriage to
a man and a woman does prevent such an application, is the Marriage Act
inconsistent with section 13(2) of the Anguilla Constitution 1982, and in need
of amendment to preserve it.
[8] The third
issue, which the court on its own initiative considers applicable, is whether
these facts merited a constitutional motion.
The
Constitution
[9] Matthias
relies on section 13 which prohibits any law which is discriminatory. It reads:
Protection from
discrimination on the grounds of race, etc.
13.-(1)
Subject to the provisions of subsections (4), (5) and (7) of this section, no
law shall make any provision that is discriminatory either of itself or in its effect.
(2) Subject to the provisions of subsections
(6), (7) and (8) of this section, no person shall be treated in a
discriminatory manner by any person acting by virtue of any written law or in
the performance of the functions of any public office or any public authority.
(3) In this section, the expression
"discriminatory" means affording different treatment to different
persons attributable wholly or mainly to their respective descriptions by race,
place of origin, political opinions, colour, creed or sex whereby persons of
one such description are subjected to disabilities or restrictions to which
persons of another such description are not made subject or are accorded
privileges or advantages which are not accorded to persons of another such
description.
The
Cases
[10] This is the
first gay-rights case to be brought in a court of the Eastern Caribbean. There is no precedent or guidance which can
be found from our court to assist us in deciding what is right in this
case. However, there are at least three
leading authorities from the Western Caribbean relevant to the question whether
a law that criminalises homosexuality or homosexual acts in private between
consenting adults, or that discriminates against the marriage of two persons of
the same sex, is constitutional. These
are:
Leonardo
Raznovich v Attorney-General of the Cayman islands
delivered by the Immigration Appeals Tribunal on 20 July 2016; and
Caleb
Orozco v A-G of Belize [No 668 of 2010], delivered by Chief Justice Kenneth
Benjamin on 10 August 2016; and
Maurice Tomlinson v The State of Belize [2016 CCJ 1], a
judgment of the Caribbean Court of Justice.
[11] Leonardo Raznovich, was
a professor at the Truman Bodden Law School.
He organized a series of public lectures on human rights, including
rights for homosexuals. Subsequently, he
was told that his contract with the college was not being renewed. With the loss of his employment, the
Immigration Department told him he must leave the country.
[12] His British spouse of
16 years was also a lawyer. He held a
work permit to work for a law firm in the Cayman Islands. Mr Raznovich’s spouse submitted an
application to have Mr. Raznovich listed as a dependent on his work permit, so
that he could stay in the Cayman Islands.
They
were married in 2012 in Mr Raznovich’s home country of Argentina, where same-sex
marriages are legal.
[13] The Immigration Board
indicated it did not have the power to accommodate the request, which was routinely
approved for married couples of a different sex. The lecturer faced the prospect of being
deported.
[14] Mr. Raznovich and his
partner appealed the decision on the grounds that the differing treatment of
same-sex couples is discriminatory and contrary to the Cayman Islands
Constitution.
[15] The
Immigration Appeals Tribunal (IAT) heard the case. On 22 July 2016, it found that the Cayman
Islands Constitution leaves no room to discriminate against same-sex married
couples. It granted Mr Raznovich’s
application to be added to his spouse’s work permit as a dependent. The Cayman Islands Government decided that
there was no hope of success in filing an appeal. It made a public announcement to that effect,
thus ensuring that this was a final decision binding on the Immigration
Department.
[16] In the Caleb
Orozco case from Belize, Mr Orozco was a Belizian gay rights activist. He brought an action in the Belize High Court
for a declaration that the section 53 of the Criminal Code which provided that
“Every person who has carnal intercourse
against the order of nature with any person or animal shall be liable to
imprisonment for ten years” contravenes his constitutional rights under
sections 3, 6 and 14 of the Belize Constitution and is accordingly null and
void and of no effect to the extent that it applies to carnal intercourse
between persons.
[17] Mr Orozco
claimed that he was a homosexual male and a health educator. He testified about his experiences up to the
age of 15 years when he accepted that he was a homosexual. He spoke of being aware from the age of three
years that he was regarded as different from other boys and his non-tradition
traits, interests and behaviour were the subject of ridicule. Conflict arose between him and his father and
siblings. At school, he was taunted and
called disparaging names. He was the
object of constant harassment mocking and stigmatisation which cause him to be
angry and very depressed as a teenager.
As an openly gay man in Belize he was the victim of violence, hostility
and discrimination. He described four
incidents involving vulgar abuse and menacing threats of violence.
[18] Additionally,
there was evidence that many gay men shunned being tested for HIV/AIDS because
of the stigma and discrimination against gay men in the society which was
reinforced by criminalisation of sex between consenting adult men.
[19] At their own
request, the Roman Catholic Church of Belize, the Belize Church of England, and
the Belize Evangelical Association of Churches were joined to the action as
Interested Parties. They gave evidence and
made legal arguments through counsel seeking to counter the claims of Mr
Orozco.
[20] After hearing
argument on behalf of the parties, Chief Justice Kenneth Benjamin ruled that Mr
Orozco had been discriminated against on the basis of his sexual orientation by
virtue of section 16(1) and (3) of the Belize Constitution, and that there was
an ongoing violation of his right under section 6(1) to equality before the law
and the equal protection of the law without discrimination. He found that the constitutional prohibition
against discrimination on the basis of sex extends to one’s sexual
preference. He concluded that section 53
contravened sections 3, 6 and 16 of the Belize Constitution to the extent that
it applied to carnal intercourse against the order of nature between
persons. He ordered the government to
pay his legal costs. The Belize
government has indicated it has no intention of appealing Chief Justice
Benjamin’s judgment. This judgment is
therefore conclusive of the legal position in Belize.
[21] I also
considered the 10 June 2016 judgment of the Caribbean Court of Justice in the
gay rights Maurice Tomlinson case, but it does not appear to assist with
any of the issues raised in this dispute.
[22] How do the
first two cases apply to Anguilla? It
may be argued that neither of these decisions is binding on us, as they are
foreign judgments. But as C-J Benjamin
put it at paragraph [59] of his judgment,
In construing the human rights
provisions of the Constitution in these proceedings, I have taken the liberty
of examining the jurisprudence of international bodies as an aid to
interpretation. It cannot now be
gainsaid that the streams of domestic law and international law ought to flow
in the same direction in establishing the fundamental norms applicable to the
rights conferred by the Constitution.
[23] The Courts of
the Eastern Caribbean similarly permit foreign judgments to be produced for the
assistance of the Court. So, while
neither of these judgments is binding on the administrative tribunals and
courts of Anguilla, it is likely that they will be found to be of strong
persuasive authority. They both relied
on constitutional provisions that are similar to those in the Anguillian
Constitution. The fundamental rights
sections of the Belize Constitution may be said to be more developed than Anguila’s
in that it contains sections specifically protecting Belizians’ rights to
privacy, human dignity, as well as to equality of the sexes and freedom from
discrimination. But, the Anguillian discrimination
section on which Greyson relies is similar to both the Belize and the Cayman
Islands sections of their Constitutions.
Application
of the law
[24] One may well
query whether Matthias has any need to apply for Letters of
Administration. If all Matthias and
Greyson’s property in Anguilla is owned jointly by them, then, by the “Law of Survivorship”,
on Greyson’s death all Greyson’s property will continue to be owned in its
entirety by Matthias. No Grant of
Letters of Administration is needed by Matthias. The Grant will not give him anything he does
not already own by the Law of Survivorship.
[25] There is perhaps
an even more important procedural point that stands in the way of Matthias
making a claim of this sort. Assuming
there was some need for Matthias to apply for Letters of Administration, which
there is not, a refusal by a Registrar to process an application for Letters of
Administration is not final. Under the
non-contentious probate rules, when a Registrar wrongfully refuses to process
an Application for a Grant of Letters of Administration, the law provides a
right of appeal to the Judge. From the
facts before us, it appears that Matthias has not exercised his right of appeal
to the Judge. It may well be considered
by a court to be a waste of court time to hear argument, and to rule on this
constitutional motion, before Matthias has exercised his right of appeal to the
Judge and argued the merits of his case there.
[26] Entirely as
an aside, as it is not properly before me for decision, I accept that the Marriage
Act of Anguilla permits marriage in Anguilla only between a man and a
woman. The consequence of that is that,
if two men applied in Anguilla to be married to each other, such a marriage
would be in breach of the provisions of the Marriage Act, unless the Marriage
Act itself was declared by a Court to be unconstitutional.
[27] There is no
reason to believe that the Courts of Anguilla would come to a different
conclusion to the Cayman and Belize courts if an anti-discrimination case were
to be brought today challenging the legality of the Marriage Act, and
obliging the governor to issue a marriage licence and obliging marriage
officers to perform gay marriages without any further amendment to the
Constitution of Anguilla.
[28] In other
words, it may well be open to a gay couple one day to claim that the Marriage
Act of Anguilla contravenes section 13 of the Constitution of Anguilla
which guarantees their right to equal treatment under the law. This imaginary gay couple may well seek a
declaration that it is illegal for a Marriage Officer in Anguilla to refuse to
marry them. A High Court in Anguilla may
well find itself guided by the Raznovich case and the Orozco
case. The Court may proceed to find the
provision in the Marriage Act unconstitutional. It may even award damages against any
Governor who refused to issue a marriage licence. It might also award damages against any
marriage officer who refused to conduct their marriage. However, that is not the question before us
today. There is no constitutional challenge
to the Marriage Act. The only
challenge is to the Registrar’s refusal to grant Letters of Administration.
Conclusion
[29] In
conclusion, and for the reasons given above, I would dismiss the Constitutional
Motion before the court on the ground that the allegedly wrongful act of the
Registrar in refusing to process the Application for Letters of Administration
was subject to an appeal to the High Court Judge which appeal was not taken
up. It is an abuse of the constitutional
motion process for this process to be used as a substitute for the proper
process of appeal to the judge. As I
have not heard any argument on the merits of an appeal to the judge against the
decision of the Registrar, I decline to order the Registrar to process the
Application for Letters of Administration.
Matthias Charles must apply to the judge to overrule the Registrar’s
refusal to deal with his application.
[30] The
Attorney-General has not asked for costs.
If he had asked for costs, I might be minded to make an order for costs
to be paid personally by counsel for the Claimant, for having wasted the court’s
time on this constitutional motion. As
it is, the motion is dismissed with no order as to costs.
Revised
5 May 2017 to reflect the same-sex judgment of the High Court in Bermuda, an
account of which can be read here: http://www.royalgazette.com/news/article/20170505/landmark-same-sex-ruling
