Human rights, race and sexuality in the Pacific: regarding others as ourselves

HIV Australia | Vol. 13 No. 1 | April 2015

By Michael Kirby

On 31 October 2014, at the University of Fiji, the Hon. Michael Kirby AC CMG, gave the Sir Moti Tikaram Memorial Lecture of 2014, entitled ‘Human Rights, Race and Sexuality in the Pacific – Regarding Others as Ourselves’.

This lecture, excerpts of which follow below, honours Sir Moti Tikaram’s legacy of fighting against discrimination based on race and ethnicity in Fiji, and reflects on current discrimination against lesbian, gay, bisexual transgender and intersex (LGBTI) people across the region.

Conceiving the other: sexuality

It is usually easy to conceive the other, in terms of people who are different from oneself. People of different skin colour will often be immediately identifiable. They stand out. And this can cause discrimination.

Sir Moti Tikaram experienced this in his lifetime. But he lived long enough to see the global struggle against racial discrimination: the end of ‘White Australia’ in the Australian Commonwealth;¹ and the overthrow of apartheid in South Africa with the creation of the new constitution promising equal justice to people of all races.

He also saw the same issues played out in his own country, Fiji. By his work and example, he contributed to a resolution of those issues, conformably with universal human rights.

It is normally difficult for a person to disguise their sex or gender. Features of their physiognomy, body shape, size and vocal and other characteristics tend to mark the difference.

Interestingly, according to evidence, many transgender people, even those who wish to undergo gender reassignment surgery, assert that cosmetic surgery designed to soften facial features can be as important as any surgery altering the genital organs.

Dress and physical presentation can also make sexual differences stand out or fade away. Such people are all too often regarded as ‘other’. A deep atavistic animosity sometimes gives rise to stigma and discrimination against those ‘others’.

In five international bodies, in recent times, I have witnessed and contributed to the attempt to terminate stereotypes, this time on the basis of sexual orientation and gender identity:

In the International Commission of Jurists (ICJ), in 1988, I proposed a number of new human rights topics. They included deprivation of human rights on the grounds of HIV status and also on the grounds of sexual orientation. Most of my proposals were readily accepted by my colleagues. However, one of them, relating to sexual orientation, was contested. A distinguished African colleague declared that there were no cases of homosexual people in his country. Any who existed were regarded as ‘deviants’, deserving the full force of the criminal law. I argued against this attitude. Eventually, my view prevailed. Sexual orientation was adopted as a program objective of the ICJ.
In 2009, I delivered a plenary address to a conference of the Commonwealth Lawyers’ Association (CLA) held in Hong Kong.²This conference was followed by a strong recommendation by the CLA, calling for the removal of punitive laws addressed to men who have sex with men in 42 countries of the Commonwealth which retain such laws. That was quoted by the judges in the Naz Foundation case in 2009 in India, declaring the anti-gay criminal law unconstitutional.
Between 2010–11, I served on an Eminent Persons Group (EPG) of the Commonwealth of Nations. The EPG addressed future challenges faced by the Commonwealth. Among the challenges were the rights of people living with, or exposed to, HIV/AIDS and the rights of sexual minorities, discriminated against by reason of their sexual orientation or gender identity. In its report of October 2011, the EPG recommended that:

‘Heads of Government should take steps to encourage the repeal of discriminatory laws that impede the effective response of Commonwealth countries to the HIV/AIDS epidemic, and to commit to programmes of education that would help a process of repeal of such laws.’³

HIV/AIDS was identified as an urgent Commonwealth priority. Centres of the epidemic exist in Africa, Asia and the Caribbean where there are many Commonwealth nations.

Removal of the criminal laws against Commonwealth citizens who are members of the LGBTI minority was strongly recommended by the unanimous voice of the EPG.⁴

The EPG took a pragmatic stance:

‘Repeal of such laws facilitates the outreach to individuals and groups at heightened risk of infection.’⁵

Between 2010–12, I served on the United Nations Development Programme (UNDP) Global Commission on HIV and the Law. In the report of that Commission, HIV and the Law: Risks, Rights & Health,⁶ recommendations were made unanimously by the Commissioners.
Strong proposals were made to all countries concerned to repeal all laws that criminalise consensual sex between adults of the same-sex and/or laws that punish homosexual identity.⁷
The recommendations called for anti-discrimination laws and for the promotion of measures to prevent violence, particularly against men who have sex with men. Further recommendations were made towards reform of the law on transgender people (TG).
An affirmation of the identity and privacy of TG was emphasised.⁸ The UNDP Commission called for removal of all laws that punish cross dressing and ensuring that people should be able to have their affirmed gender recognised in identification documents.

Finally, in 2013–14, I participated in the deliberations of the Council of the Human Rights Institute (HRI) of the International Bar Association (IBA) on this topic.
The IBA recognised, and asserted, the support of lawyers worldwide for the removal of criminal laws against LGBTI people, by reason of their sexual orientation. It called for these laws to be changed.⁹

I recount these activities not to boast. But to show that a lot is now happening on many fronts.

Sexuality in the Pacific

Unfortunately, in many countries of our world, including in the Pacific region, the advances in the legal rights of LGBTI people in the past decade have often been disappointing.

If regard is had to the position of LGBTI rights in Pacific countries, the position now reached is that eight out of 14 nations still criminalise same-sex sexual activity; 12 out of 14 do not have any anti-discrimination laws that include sexual orientation and gender identity as protected grounds; and 14 out of 14 provide no recognition to the personal relationships of same-sex couples.

Yet, in the past 10 years, five of the 14 states of the Pacific have decriminalised same-sex sexual activities (Fiji, Marshall Islands, Niue, Palau and Vanuatu).

In the case of Fiji, the country’s sodomy law was declared unconstitutional under the then Fiji Constitution in the decision in McCoskar v The State.¹⁰ Then, by the Constitution of Fiji of 2013, discrimination (relevantly) on the basis of ‘sexual orientation, gender identity and gender expression’ was prohibited.

Fiji has provided an example sorely needed in the Pacific region, because of the failure of other Pacific nations to take the recommended course of action.

Its President gives a lead at home and at international conferences. However, Fiji too needs to do more in terms of anti-discrimination law, relationship recognition and reform of the colonial laws on sex work.¹¹

There is some good news appearing on the horizon concerning the repeal of criminal laws against LGBTI people in the Pacific. [In] the Cook Islands, a new amended Crimes Act has been prepared, although not yet enacted. This deletes all explicit criminal prohibitions against same-sex sexual activity.

Additionally, the new Criminal Code 2014 of Palau, which entered into force on 23 July 2014, decriminalised adult, private, same-sex sexual activity. In Samoa, the Crimes Act 2013 criminalises ‘sodomy’. The previous Crimes Ordinance 1961 (Samoa) also criminalised ‘indecency between males’.

The latter provision was removed by the Crimes Act 2013 (Samoa) which entered into force on 1 August 2013. The same statute of 2013 also removed the previous offence of a ‘male impersonating a woman’.

Save for these changes, the moves in the directions urged by the EPG and UNDP have been almost non-existent in the Pacific. Papua New Guinea still operates under the Criminal Code 1974 (PNG), a gift of Australia in colonial times, which imposes sanctions on ‘sexual penetration against the order of nature’ and ‘indecent practices between males’.

Attempts by Dame Carol Kidu, Commissioner of the UNDP Commission, to gain support for decriminalisation in PNG fell on deaf ears during her service as a member of the PNG Legislature.

The urgency of securing reform arises out of the fact that funding for the Pacific struggle against HIV and for treatment of those infected has evaporated or certainly diminished. Some citizens were (and in some places still are) highly stigmatised: transgender people, sex workers and men who have sex with men.

It is likely that many of them, with legal help, may seek to harness human rights provisions in their national constitutions that mandate that all citizens are equal.¹²

The same is true of Solomon Islands. The penal law of Solomon Islands criminalises ‘buggery’ and ‘indecent practices between persons of the same-sex’. There are no relevant anti-discrimination laws.

We now know that sexual orientation and transgender status are not ‘lifestyles’, wilfully adopted by minorities to challenge divine and local law.

They are inbuilt features of human beings (and other mammalian species). Therefore, imposition of criminal punishments and withdrawal of protection from discrimination, constitute irrational and unscientific responses to the characteristics of the persons concerned.

LGBTI people search for love, support and companionship as much as heterosexual people do. The evidence of today’s world suggests that LGBTI people will not die out or go away.

They will increase in vigour and insistence and will continue to gather supporters from the broader community because of the irrationality and unkindness of this type of law and its effect on the peace and wellbeing of good citizens and on their communities, particularly as they struggle against blood borne diseases, especially HIV and the cruel disease of hatred.

Sir Moti’s instruction and example

Sir Moti Tikaram did not grapple expressly (so as far as I am aware) with the issues of diversity presented by sexual orientation and gender diversity. But he did show us the way by his lifelong opposition to racial discrimination
and inequality.

I feel the same obligation to raise my voice in respect of hostility and discrimination on the ground of sexual orientation as well as transgender and intersex identity and status.

Eventually, human beings will build a world that removes from the minds of human societies the medieval hobgoblin and unscientific presuppositions that have caused such hatred, pain and violence to sexual minorities. We need leaders like Sir Moti to shine the light on the way forward. And that way forward will invoke the Golden Rule that is a feature of all of the world’s great religions. To do unto others as we would wish them to do unto ourselves.¹³

Sir Moti Tikaram lived by the Golden Rule. So should we. So should our countries. So should our laws. We should all be advocates for this principle. It lies behind the universal rules of human rights and the international law that sustains those rules.

If Sir Moti Tikaram were with us today, I believe that he would endorse these sentiments. And he would say to those in doubt:

I am doing and saying this for your benefit. So that you will inherit a world that is free of unjust hostility, discrimination and violence.

That is the world that we must build everywhere. And particularly in the beautiful region of our planet that bears the marvellous proclamation and commitment: ‘Pacific’.

The full text of this lecture will be published in the University of Fiji Law Journal (forthcoming, 2015).

References

1 The White Australia Policy was enforced in Australia for more than a century after the Victorian Colonial Parliament enacted an anti-Chinese law in 1855. Under that law, the number of Chinese immigrants was restricted and a poll tax was imposed.

When an inter-colonial conference of 1896 concluded that the same laws should apply to all non-white races, the Colonial Office in London objected. The Secretary of State for the Colonies (UK) suggested adoption of a ‘dictation test’ instead.

This became the basis of Australian immigration law until 1958. See Pacific Island Labourers Act 1901 (Cth). After 1958, a non-racial immigration policy was gradually introduced.

Nygh, P., Butt, P. (eds.) (1997). Australian Legal Dictionary. Butterworths, Sydney, 1267. See also R v Carter; ex parte Kisch(1934) 52 CLR 221; R v Wilson, ex parte Kisch (1934) 52 CLR 234.

2 Kirby, M. (2009). Homosexual Law Reform: An Ongoing Blind Spot of the Commonwealth of Nations. European Human Rights Law Review 21, cited in Naz Foundation v Delhi [2009] 4 LRC 838 at 879 [85].

3 Commonwealth of Nations, Eminent Persons Group, Report of the EPG to the Commonwealth Heads of Government. (2011). A Commonwealth of the People: Time for Urgent Reform.Commonwealth Secretariat, London, October 2011 (hereafter ‘EPG Report’), 168 (Rec R60).

4 ibid., 100.

5 ibid., 100.

6 The Global Commission on HIV and the Law. (2012). HIV and the Law: Risks, Rights & Health. United nations Development Programme (UNDP), New York (Hereafter ‘UNDP Report’).

7 UNDP Report, 50 (Rec 3.3.1).

8 ibid., 54 [Rec 3.4.3].

9 The Council of the International Bar Association (IBA) (2014, 24 May). International Bar Association council resolution on criminal laws – repeal of criminal laws that impose penalties relating to certain sexual conduct. IBA, London. Retrieved from: www.ibanet.org

10 McCoskar v The State (also cited as DPP v Nadan and McCoskar) [2005] FJHC 500 (26 August 2005), High Court of Fiji. See also: Gibson, R. (2006). Trouble in Paradise. Victorian Bar News, 134 (Spring 2005), 31. Retrieved from: www.vicbar.com.au

11 UNDP Report, ibid., 37 [Rec 3.2.1].

12 Kelly-Hanku, Watson, Peni and Ketepa (above).

13 Leviticus 19:18, Matthew 7:12; Luke 6:31, 10:25-28; Galatians5:114. Holy Qur’an (Surah 24, ‘The Light’ v.22).

The Hon Michael Kirby AC CMG retired from the High Court of Australia on 2 February 2009 as Australia’s longest serving judge.

Since judicial retirement, his current achievements include being a member of the Eminent Persons Group which is investigating the future of the Commonwealth of Nations, and appointment to the UNDP Global Commission of HIV and the Law.