By Admin. Updated 5:30 a.m., Sunday, February 25, 2024, Atlantic Standard Time (GMT-4).
UNAIDS has expressed concerns after a judgement by the Eastern Caribbean Supreme Court in St. Vincent and the Grenadines denied an application to strike down or modify challenged provisions to bring them into conformity with the Constitution.
The claimants in the case were – Mr. Javin Johnson and Mr. Sean MacLeish who also asked the court to grant orders declaring that the challenged provisions are unconstitutional, illegal, null, void, invalid and are of no effect.
They challenged sections 146 and 148 of the Criminal Code of the Laws of St. Vincent and the Grenadines.
Partnership (VincyChapSVG) Inc. also applied and was permitted to participate in the proceedings as an added interested party and is supportive of the claimants‘ stance in these proceedings, the court said.
The defendant was the Attorney General. A coalition of Churches operating in Saint Vincent and the Grenadines applied to be joined as Interested parties to the proceedings and their application was granted. Their position aligns with the Honourable Attorney General‘s.
In an oral judgement on February 16 which was published on February 22, 2024, the High Court denied the applications of the claimants.
The court also ordered the claimants to pay $7,500 prescribed costs to the defendant.
UNAIDS said on Friday (February 23), it is concerned about the impact on people’s health and rights following the decision of the High Court of St. Vincent and the Grenadines regarding sections 146 and 148 of the Criminal Code, which it says upholds discriminatory and harmful laws against LGBTQ people.
The claims, the rebuttal, and the judgment
The claimants challenged provisions thought to criminalize bestiality, consensual sexual intercourse, and sexual intimacy between same-sex adults and buggery between consenting adults.
According to the published court judgement, Mr. Johnson and Mr. MacLeish contend that the challenged provisions are unconstitutional, illegal, null, void, invalid and are of no effect because they infringe respectively, sections 1(c), 3, 5, 7, 9, 10, 12 and 13 of the Constitution of Saint Vincent and the Grenadines and their fundamental rights to privacy, personal liberty, protection from inhuman treatment, protection from arbitrary search and entry, freedom of conscience, freedom of expression, freedom of movement, and protection from discrimination.
Johnson and Mac Leish “asked the court to strike down the challenged provisions or modify them to bring them into conformity with the Constitution ;or grant orders declaring that the challenged provisions are unconstitutional, illegal, null, void, invalid and are of no effect.
“Alternatively, they seek orders declaring that the challenged provisions abridge, abrogate, infringe, violate and/or contravene their constitutionally protected rights and are arbitrary, irrational and/or contrary to the common law prohibition of unequal treatment on irrational grounds,” the court document said.
The defendants in summary
“The defendants argued that opposed the claims and contended that the challenged provisions are not unconstitutional or illegal and are reasonably justifiable on the grounds of public morality and public health,” the court said.
The judgment in summary
“On his behalf the learned Solicitor General submitted that Messrs. Johnson and MacLeish lack the requisite legal standing to prosecute these claims because they do not have a sufficient interest in the subject matter of the claims,” the court said.
“The Court dismissed in their entirety all claims by the two Claimants and awarded the sum of EC$7,500 prescribed costs to the Attorney General to be paid by each of the Claimants,” UNAIDS said.
“In the written decision published February 22, 2024, the Court in dismissing the consolidated claims of Javin Johnson and Sean MacLeish held that the Claimants had failed to establish on the evidence, a present or existing breach of any alleged rights due to lack of locus standi (the requisite standing to invoke a review by the Court) as the Claimants do not reside in the State and had not for years prior to the filing of the claims,” UNAIDS said.
UNAIDS said it is particularly concerned that the judgment referred to protecting public health and tackling the HIV epidemic as justifying punitive anti-LGTBQ laws, because the evidence shows that such laws hinder efforts to protect public health and tackle the HIV epidemic. At paragraph [267] of the judgment the court asserted:
“to my mind the thought of a public health crisis occasioned by an unstemmed deluge of new HIV cases is a real and serious concern which reasonably justifies a public health response of the kind embedded in the challenged provisions”.
“Studies show that these laws have negative health outcomes. A punitive legal environment, including criminalisation of same sex relationships, drives people underground and away from vital health services, including HIV prevention, testing, treatment, and care. To achieve the goal of ending AIDS as a public health threat by 2030, it is vital to ensure that everyone has equal access to essential services without fear, stigma or discrimination,” UNAIDS said.
UNAIDS said it estimates that not achieving decriminalization in all countries would result in about 750 000 cumulative new HIV infections from 2020 to 2030.
“The decision made in the High Court of St. Vincent and the Grenadines stands in stark contrast to the rulings in Belize, Guyana, Trinidad and Tobago, Antigua and Barbuda, St. Kitts and Nevis and Barbados where the courts ruled that laws which criminalise persons based on sexual orientation and gender identity violate the protected rights to dignity, privacy, personal liberty, freedom of conscience, freedom of expression and protection from discrimination,” UNAIDS said, according to the press release.
UNAIDS said: “Regardless of the outcome of this court decision, UNAIDS holds hope that the courts will serve as a vital last resort for social justice, the protection of human rights and the advancement of public health for improved health and wellbeing for all. UNAIDS work to end AIDS and to leave no one behind will continue in partnership with communities and with all branches of government, including the courts”.
“Punitive laws obstruct the end of AIDS and ultimately hurt everyone’s health. As we prepare for observance of the tenth anniversary of Zero Discrimination Day on March 1st, 2024, we pay tribute to the courage of communities, and call on all duty bearers to protect the health of all by protecting the human rights for all,” UNAIDS added, according to the press release.
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