In March 2005, the applicants, Nadan and McCoskar, engaged in consensual, same-sex acts. McCoskar then accused Nadan of stealing AUD$1,500 from him and reported this to the police. The police questioned both parties and Nadan revealed that McCoskar had taken nude photographs of him and sexual images of the couple together. The appellants were separately charged with offences contrary to Section 175(a) and (c) of the Fijian Penal Code 1997 (Cap. 17) that each had or permitted carnal knowledge of the other against the order of nature. They were also each separately charged that during the same time they committed acts of gross indecency between males contrary to Section 177 of the Penal Code.
Nadan and McCoskar appeared unrepresented, before the Resident Magistrate in Nadi, pleaded guilty and were sentenced to 12 months’ imprisonment on each count to run consecutively. They were sentenced to jail for two years.
Both applicants appealed to the High Court against their conviction and sentence. They argued that Sections 175(a) and (c) and 177 of Penal Code were invalid as they breached the constitutionally guaranteed rights of privacy, equality and freedom from degrading treatment.
The court noted that ‘sodomy’ laws were copied throughout the British Empire and inherited by Fiji. It acknowledged the enduring influence of Christianity and its contribution, along with that of other faiths, to the spiritual life of Fiji. The court also found that the Constitution reaffirmed the human rights and fundamental freedoms of all individuals.
Considering Section 175 of the Penal Code, the court held that while Section 175 offences were not exclusively anti-homosexual they were selectively enforced against homosexuals. The court stated that while the ‘technical description of the law may read as equal. The application of the law is not.’ Additionally, the court found that Section 177 was categorically discriminatory stating that it was unequal in its legal treatment of citizens.
The court addressed privacy under Article 37 of the Constitution. It held that the court should use a broad construction of privacy that is consistent with international law. It further determined that privacy includes ‘the positive right to establish and nurture human relationships free of criminal or indeed community sanction.’ The court found that the criminalization of carnal acts against the order of nature between consenting adults was a severe restriction on the right to privacy.
Turning to Article 38(1) of the Constitution, the right to non-discrimination, the court found that unequal treatment before the law on the grounds of gender and sexual orientation to be repugnant to the Constitution. Article 25 of the Constitution, freedom from degrading treatment, was also considered by the court. It found that the state had subjected the applicants to degrading and disproportionately severe treatment when they appeared before the Resident Magistrate in Nadi.
The court declared Sections 175(a) and (c) and 177 of the Penal Code inconsistent with the Constitution and invalid. The court read down the sections dealing with carnal knowledge against the order of nature and acts of gross indecency. It stated that these provisions would still apply to sexual conduct between adults and adult males where sexual activity occurs in public or without consent or involves parties under the age of 18 years.
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