On the 22nd of April, 2024, the High Court of Justice of the Commonwealth of Dominica, issued a judgment arising out of the Constitutional claim BG v. The Attorney-General of the Commonwealth of Dominica et al. In effect, this judgment declared that:
- to the extent that the Sexual Offences Act Chap. 10:36, at section 16, criminalized buggery taking place in private between two consenting persons over the age of 16, and
- to the extent that the Sexual Offences Act Chap. 10:36, at section 14 criminalized acts
of gross indecency in private between any two consenting persons over the age of 16 (the Act had made an exception for acts of gross indecency between male and females only),
that such provisions of these sections contravened the Constitutional right to liberty, freedom of expression, and protection of personal privacy. Further such provisions were not reasonably justifiable in a democratic society, and therefore these provisions are void. The Court went on to provide an amended version of the relevant sections, which would be in keeping with the Constitution.
It is important to note at the outset that (i) other Constitutional breaches were also claimed, but not acceded to by the court and, (ii) in relation to the claims that were in fact granted by the Court, the State had conceded the legal points. The law on these areas appears to be pellucid and with little dispute. Also, as the Court pointed out, the case had nothing to do with the society’s moral or religious convictions concerning lifestyle choices.
In coming to its final decisions, the Court was guided by recent judgments delivered in our sister
States of Antigua & Barbuda, St Kitts & Nevis, Belize and Trinidad & Tobago, among other
Commonwealth countries.
The Court, therefore, acted with propriety and in accordance with the tenets of the law and its mandate.
What is also important to understand about the Court’s ruling, is that declaring the law against buggery between consenting adults unconstitutional, in a scenario where the relevant sections of our Constitution have never been changed, is declaring that this law has been unconstitutional since its inception. It was, therefore, only a matter of time and a willingness by those wishing to challenge it, for this law to be struck down.
As a result of the judgment, both the Court and counsel for the Claimant, Ms Cara Shillingford, have come under unfair and unreasoned attack by some members of the public. Some have imputed improper motive to both the Court and counsel. The Dominica Bar Association wishes to decry such attacks in the strongest possible terms. Such attacks are unnecessary and only serve to undermine the rule of law and the very institutions that protect the rule of law for the benefit of society as a whole. To express one’s personal moral and/or religious views, and even to disagree with the Court’s decision, is a part of the freedoms that we enjoy under our Constitution, and hence such discourse is always acceptable. However, such discourse ought not to cross into the realm of attacks that claw away at the tenets and support structures of that Constitution. It is important for all to appreciate that the Courts and counsel have a duty to uphold the Constitution and the justice system.
On this stance, we have the express support of the Organization of Commonwealth Caribbean Bar Associations (OCCBA), which itself issued a statement in support of counsel for the Claimant (statement issued 30th April, 2024), and of the Commonwealth Lawyers Association, to whom we are thankful.
The ability to freely challenge ALL laws that are inconsistent with and thereby breach citizens’
Constitutional rights must be resolutely safeguarded, regardless of our individual moral positions.
This is for the protection of our Country, it’s citizens, good order, rights and freedoms.
