Fiji's unnatural sex laws overturned

Deciding on their appeal, High Court judge Justice Gerard Winter said their convictions were invalid because they were inconsistent with the 1997 Constitution's protection of privacy and equality [1]. He also found that  McCosker and Nadan's pleas at their original trial in April were not taken properly and the magistrate made inappropriate statements from the bench.

Article 38 of the Fijian constitution disallows discrimination based on any "actual or supposed personal characteristics or circumstances, including…sexual orientation." Yes, Fiji's constitution, like South Africa's, specifically protects sexual orientation. 

Article 37 of the constitution also protects the "right to personal privacy." 

However, Fiji has retained the colonial era Penal Code wherein Section 175 specifies up to 14 years’ imprisonment, "with or without corporal punishment," for "any person who has carnal knowledge of any person against the order of nature." Section 177 provides for up to five years’ imprisonment for "any male person who, whether in public or private, commits any act of gross indecency with another male person." 

These are similar to Singapore's Penal Code, Sections 377 and 377A, though the penalties differ.

By the latest ruling, these old laws in Fiji are now considered in contravention of the 1997 constitution, at least for cases of homosex in private.

However, at the time of writing, the government has yet to decide whether to appeal the High Court decision to Fiji's Supreme Court. One indication that it may was that Prime Minister Laisenia Qarase himself has defended the laws, against complaints by human rights groups. See box on the right.

As for the inappropriate comments by the magistrate, these have been widely reported. At the original trial, Magistrate Syed Muhktar Shah  described their behaviour as "something so disgusting that it would make any decent person vomit." (http://hrw.org/english/docs/2005/04/12/fiji10466.htm)

"If you wanted to have fun, you should have stayed in Australia instead of trying to come to Fiji and exploit our young boys.... With you being a former lecturer, you should have known that such indecent acts are illegal," gay.com UK, reported the magistrate to have said (7 April 2005).

* * * * *

McCosker said he did not know that there was such a law in Fiji. Gay groups complained that the Australian government did not keep its citizens informed of the legal risks in foreign countries. In response, the Department of Foreign Affairs and Trade updated its travel advisories, warning about countries that had laws against homosexuality. Singapore was included in the update.

* * * * *

As reported by The Age (an Australian newspaper) on 20 August 2005:

McCosker went to Fiji at Easter to ease the stress of job hunting after being made redundant as a program co-ordinator at RMIT's Hamilton campus.

In Fiji, he met 23-year-old Dhirendra Nadan and had what has never been disputed to be consensual sex.

His trouble started when he reported Nadan to police for allegedly taking $A1500 from his wallet. As he waited for his flight home later that day, April 3, McCosker was arrested and held for five hours without charge.

Nadan had also been held and told police that McCosker had paid him for sex and had taken photographs to be sold on the internet. McCosker denies both allegations, saying they were fabricated by Nadan.

Within 48 hours, McCosker was tried and jailed for two years on two anti-sodomy charges. He had no legal representation. Human Rights Watch and Amnesty denounced the convictions as a violation of human rights.

A Warrnambool neighbour, Alan Richardson, said that after a distressed McCosker called with news of his arrest, Mr Richardson contacted the Australian High Commission in Suva.

Mr Richardson said a consular official rang back that night and reported that "inappropriate images" had been found on McCosker's digital camera and McCosker was likely to be fined. But just 48 hours after his arrest, McCosker phoned saying both he and Nadan had been jailed.

[3]

McCosker stayed a week in jail. He was released on bail when he filed his appeal. However, he had to remain in Fiji, without a job, till his appeal was heard.

The speed with which he was hauled to court meant it was difficult for him to get legal advice. Furthermore, there's a suggestion in press reports that at first, he wanted the matter as low-profile as possible, since he had spent his entire life in the closet. The Age reported that many of his friends and family in Warrnambool first learnt of his sexuality only through media reports of his jailing.

* * * * *

Despite the specificities of this case, certain general points can be made:

The presence of such laws make it highly risky for persons to avail themselves of police help when they feel they have been a victim of a crime, if the circumstances are intricately linked to homosex. There is the likelihood, as demonstrated in this case, that the police will take no action on the complaint but instead charge the victim with committing a crime himself. 

This cannot be good for society when the victimless crime is pursued, while the other crime with a victim is left aside. It can only encourage such other crimes, e.g. extortion, blackmail, robbery, to flourish.

This misapplication of police attention then raises the question of whether everyone is given equal protection.

In Fiji, it has now been ruled that the laws on unnatural sex and gross indecency are contrary to the constitutional guarantees of equality and privacy. In Singapore, the government has conceded that these laws will not be applied, in practice, to consensual sex between adults. Well, if it is no longer possible to justify the application of these laws in light of contemporary understanding of human rights, then why keep them? Why have them around to work their perverse effects encouraging other crimes against gay persons in vulnerable situations, and discouraging their reporting by the victims?

© Yawning Bread 

Footnotes

1. The relevant clauses in Fiji's 1997 constitution are:
   

   37.-(1) Every person has the right to personal privacy, including the right to privacy of personal communications.
   
   (2) The right set out in subsection (1) may be made subject to such limitations prescribed by law as are reasonable and justifiable in a free and democratic society.
   
   38.-(1) Every person has the right to equality before the law.
   
   (2) A person must not be unfairly discriminated against, directly or indirectly, on the ground of his or her:
   (a) actual or supposed personal characteristics or circumstances, including race, ethnic origin, colour, place of origin, gender, sexual orientation, birth, primary language, economic status, age or disability; or
   (b) opinions or beliefs, except to the extent that those opinions or beliefs involve harm to others or the diminution of the rights or freedoms of others;
   
   or on any other ground prohibited by this Constitution.

   Section 38 continues with provisions for transitional arrangements and exceptions for customary practices of indigenous communities and religions. 
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2. About 52% of Fijians are Christian (roughly half of whom are Methodist), 33% Hindu and 7% Muslim. Fiji's population is nearly equally split between indigenous Pacific Islanders and people of Indian ancestry.
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3. This is one of the drawbacks of this age. The Australian guy's story is well covered, but we can find nothing about Nadan's story, because he's Fijian. It does seem that his side of the story may be equally interesting, but the bias in media attention is such that we may never know.
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Addenda

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