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The Global Legal Monitor is an online publication from the Law Library of Congress covering legal news and developments worldwide. It is updated frequently and draws on information from official national legal publications and reliable press sources. You can find previous news by searching the Global Legal Monitor.

Papua New Guinea: Changes to Marriage Laws to be Introduced

(Aug. 23, 2016) On August 22, 2016, it was reported that the Papua New Guinea government will soon introduce legislation to amend the country’s marriage and divorce laws.  (Nellie Setepano, PNG Marriage Laws to Be Amended as Part of Reform Bundle to Legally Recognize Traditional Marriage and Protect Minors, PNG POST-COURIER (Aug. 22, 2016).)  Two bills, the Marriage (Amendment) Bill 2015 and the Matrimonial (Clauses) Bill 2015, were discussed at a child protection workshop in the capital, Port Moresby, which was attended by Religion, Youth and Community Development Secretary Anna Solomon.  (Id.)  It appears that these bills would amend the Marriage Act 1963 and the Matrimonial Causes Act 1963.  (Marriage Act 1963 & Matrimonial Causes Act 1963, Pacific Legal Information Institute website.)

The news report stated that proposed clauses 2A and 2B of Matrimonial (Clauses) Bill 2015 contain a definition of marriage that would be applicable to both customary and non-customary marriages, with the goal of ensuring that all marriages “meet certain basic requirements regarding consent and marriage age.”  (Setepano, supra.)  Currently, the Marriage Act 1963 recognizes customary marriages as valid and excludes them from certain statutory requirements, including the minimum age requirements.  (Marriage Act 1963, ss 3 & 6(3).)  The amendments would also set a new standard minimum age for all marriages at 18 years; the Marriage Act 1963 currently contains a marriageable age of 18 years for men and 16 years for women, with judges able to allow marriages involving boys aged 16 years and a girls aged 14 years.  (Id. s 7.)

The news report noted that the minimum age of 18 years would make the marriage law consistent with the Lukautim Pikinini Act 2015 (child protection legislation), which included provisions that made marriage of minors under 18 years of age illegal.  (Setepanosupra; Under-Age Marriage Ban in PNG, PNG POST-COURIER (Mar. 12, 2015); Michael Walsh, PNG Anti-Child Marriage Bill Expected to Pass, ABC NEWS (May 31, 2015).)  Under the new marriage law amendments, the penalties for persons who force an underage marriage would include fines between K10,000 and K20,000 (about US$3,200-$6,400) and prison terms of between five and seven years.  (Setepano, supra.)

Other changes discussed at the workshop include greater recognition in the divorce law of the contributions of stay-at-home spouses.  Under the proposals, “a spouse’s indirect contributions as home-maker to the economic stability and security of the family, including in particular the acquisition of the property, will be recognised.  The court is required to take into account any financial and non-financial contribution made by a party to the marriage.”  (Id.)

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Cambodia: Three-Year Visas to Be Launched in September

(Aug. 23, 2016) It was reported on August 19, 2016, that the Cambodian government will allow foreigners to stay in Cambodia on a new, three-year multiple entry visa. (Cambodia to Introduce Three-Year Visas Next Month, BANGKOK POST (Aug. 19, 2016).) According to Minister of Tourism Thong Khon, the visa application will be available from September 1 “to foreigners from all countries, … with different prices according to the length of stay.” (Id.) Information on the pricing was not yet available.

At present, tourists from the ten-member ASEAN (Association of Southeast Asian Nations) countries are granted visas for visits of from 14 days to a month, while tourists from other parts of the world, such as the European Union and the United States, may apply for visas good for a month. Businessmen and women can currently renew a visa for a period of one month, three months, six months, or up to a year. (Id.; ASEAN Member States (last visited Aug. 22, 2016).)

Ho Vandy, Secretary-General of Cambodia’s National Tourism Alliance, a private organization, stated that the visa extension measure is aimed at boosting the country’s tourism sector. “It is a strategy,” he said, “to make the target [of seven million tourists] come true after the private sector and government work together.” (Cambodia to Introduce Three-Year Visas Next Month, supra.) Cambodia is seeking to attract at least 7.5 million foreign tourists by 2020, among them two million Chinese and 300,000 Japanese, based on the Cambodia Tourism Marketing Strategy 2016-2020. (Id.)

According to Khon, the strategy was drafted to draw even more potential Chinese tourists, in particular, to Cambodia, because “[t]he number of Chinese tourists visiting the country is increasing every year.” (New Tourism Strategy to Focus on Chinese Market, KHMER TIMES (Jan. 26, 2016).) To accommodate the anticipated numbers of Chinese tourists and to improve the skills of local tourist operators who handle Chinese clients, Cambodia also recently established the China Ready Center.(Cambodia Establishes Center to Woo Tourists from China, CHINA.ORG.CN (June 30, 2016).) Khon also commented that the strategy “will focus on competitiveness by intensifying promotion and marketing, diversifying tourism products, increasing investment in tourism, training staff, upgrading and expanding facilities, services and destinations, ensuring cleanliness and enhanced environmental protection, expanding connectivity, protecting heritage sites, and ensuring safety and security … .” (New Tourism Strategy to Focus on Chinese Market, KHMER TIMES (Jan. 26, 2016).)

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Australia: State Legislation to Remove Barriers to Changing Sex on Birth Certificate

(Aug. 22, 2016) On August 18, 2016, the Attorney-General of the Australian State of Victoria introduced the Births, Deaths and Marriages Registration Amendment Bill 2016 in the state parliament.  The bill “removes the need for applicants to have undergone sex affirmation surgery before being able to apply for a new birth certificate.”  (Press Release, Martin Pakula, Birth Certificates to Reflect True Identity (Aug. 18, 2016), Premier of Victoria website.)  In addition, couples will no longer be required to divorce if one partner changes the sex on their birth registration.  (Id.)  There is currently a need to divorce to avoid the creation of a same-sex marriage, which is not legal in Australia under federal marriage legislation.  (Nino Bucci, Gender Diverse Win Right to New Birth Certificates, AGE (Aug. 18, 2016); Mary Anne Nielsen, Same-Sex Marriage: Issues for the 44th Parliament, AUSTRALIAN PARLIAMENTARY LIBRARY (Sept. 8, 2015).)

If the bill is passed by the parliament, it will allow adult applicants to “nominate the sex descriptor in their birth registration as male, female or specify a gender diverse or non-binary descriptor.”  (Birth Certificates to Reflect True Identity, supra.)  They will not need a supporting statement from a doctor; instead, according to Pakula, “[a]nyone over the age of 18 will need to make a statutory declaration and obtain a supporting statement from an adult who has known them for at least 12 months to make an application.”  (Karen Barlow, Victoria Moves to Allow Gender Change on Birth Certificates, HUFFINGTON POST AUSTRALIA (Aug. 18, 2016).)

There will also be a new process for parents to apply to alter the sex recorded on their child’s birth registration.  This process will require the consent of the child, along with a “supporting statement from a doctor or registered psychologist confirming the child has capacity to consent, and that the change is in the best interests of the child.”  (Birth Certificates to Reflect True Identity, supra.)  Children over 16 years of age will be assumed to have the capacity to consent to such a change.  (Id.)

Developments in Other Australian Jurisdictions

A similar law, enabling alterations of the record of an adult’s or child’s sex without a surgery requirement, was enacted in the Australian Capital Territory (ACT) in 2014.  (Births, Deaths and Marriage Registration Amendment Act 2014 (ACT), ACT Legislation Register; Press Release, ACT Government, Recognition for Sex and Gender Diverse Community Members (Mar. 20, 2014).)

The ACT parliament passed further legislation in February 2016 that allows parents to choose “mother” and “father” for either parent, as well as “parent 1″ and ”parent 2,” or “mother” and “mother,” or “father” and “father” on their child’s birth certificate.  (Kirsten Lawson, New Gender Non-Specific Birth Certificates for ACT, CANBERRA TIMES (Feb. 16, 2016); Justice Legislation Amendment Act 2016 (ACT), ACT Legislation Register.)

The legislation also created a new identity document (a “recognised details certificate”) for gender diverse people not born in ACT who cannot change their gender on their birth certificates.  Such people can obtain the document, which recognizes their name and the sex they live by, provided they have a statutory declaration from a doctor or psychologist confirming their intersex status or that they have “received appropriate clinical treatment for alteration of” their sex.  (Justice Legislation Amendment Act 2016 (ACT) s 12, inserting new s 29B into the Births, Deaths and Marriages Registration Act 1997 (ACT).)  Parents are also able to apply for the document for their children.  (Id. s 12, inserting new s 29A(2); Lawson, supra.)

The government of the State of South Australia also introduced a bill to remove the reassignment surgery requirement for altering birth certificates on August 4, 2016.  (Births, Deaths and Marriages (Gender Identity) Amendment Bill 2016 (SA), South Australian Legislation website.)

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Vietnam: Legislature Considers Law on Guard Force

(Aug. 22, 2016) During its current session, which began on August 15, 2016, the National Assembly of Vietnam (NA) discussed proposed legislation on the country’s Guard Force. While a 2005 ordinance gave a general structure to the Guard Force, according to the Vice Chairman of the NA, Do Ba Ty, legislators have now agreed to upgrade the ordinance to a law. (Vietnam: Guard Force Law Under NA Discussion, VOV NEWS (Aug. 15, 2016), Open Source Enterprise online subscription database, No. SER2016081538411867.)

In addition to regular police forces and an army, Vietnam has various paramilitary and militia forces, including “neighborhood guardians.” These groups report either to the Ministry of National Defense or the Ministry of Public Security. (Palash Ghosh, Vietnam: A Police State Where One-In-Six Works for Security Forces, IBT TIMES (Aug. 29, 2013).) The U.S. State Department report on human rights in Vietnam for 2015 noted that “[a]t the commune level, guard forces composed of residents or members of government-affiliated social organizations commonly assisted police.” (Vietnam 2015 Human Rights Report, COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES FOR 2015, U.S. Department of State website (last visited Aug. 22, 2016).)

The draft legislation comprises 29 articles organized in five chapters. Its stated goal is to make the security activities of the guards effective while guaranteeing that the human rights enumerated in the Constitution are upheld. (Vietnam: Guard Force Law Under NA Discussion, supra.) The tasks of the guard force include “helping to protect the [Communist] Party, the State, national security and social order and safety.” (Law on Guard Force to Be Promulgated, VIETNAM.NET (Aug. 15, 2016).)

The NA was reviewing the draft for the first time; according to Ty, more work will be done by the drafting board, in conjunction with relevant government agencies, to prepare for the next time it is considered. (Id.) At the conclusion of the legislative session on August 16, NA Chairwoman Nguyen Thi Kim Ngan said that the committee considering the Law on the Guard Force sent comments on the draft, as well as other government proposals, to the administration. (Vietnam: NA Standing Committee Closes Second Meeting, VOV NEWS (Aug. 16, 2016), Open Source Enterprise online subscription database, No. SER2016081670224411.)

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Belize: Anti-Homosexuality Legal Provision Struck Down for First Time in Caribbean

(Aug. 19, 2016) On August 10, 2016, the Supreme Court of Belize declared unconstitutional the country’s legal provision banning sodomy. (Jaclyn Belczyk, Belize Top Court Strikes Down Anti-Homosexuality Law, PAPER CHASE (Aug. 11, 2016); Adele Ramos, “Sex” Redefined 20 Years Ago, and Belizeans Didn’t Know It!, AMANDALA(Aug. 17, 2016).) In Caleb Orozco v. The Attorney General of Belize, the claimant challenged the constitutional validity of section 53 of the Belize Criminal Code, insofar as “it operates to criminalize anal sex between two consenting male adults in private.” (Caleb Orozco v. The Attorney General of Belize et al., Claim No. 668 of 2010 (Aug. 10, 2016), § 2, Judiciary of Belize website.) Reportedly, Belize is the first Caribbean nation to declare such a provision unconstitutional.  (Belczyk, supra.)

Claimant Caleb Orozco is a citizen of Belize “and by his own admission on oath, a homosexual adult male disposed to engaging in anal intercourse.” (Caleb Orozco v. The Attorney General of Belize et al., supra, ¶ 17.) Orozco sought, among other relief, a declaration that section 53 of the Belize Criminal Code, Chapter 101, contravened his constitutional rights as protected in sections 3, 6, and 14 of the Belize Constitution and affirmed in its Preamble and is therefore “null and void and of no effect to the extent that it applies to carnal intercourse between persons.” (Id. ¶ 1.)

Section 53 states, “[e]very person who has carnal intercourse against the order of nature with any person or animal shall be liable to imprisonment for ten years. (Belize Criminal Code, Cap. 101 (as at Dec. 31, 2000), art. 53, Organization of American States website.) The claimant accordingly also sought that reference to “person” be removed from the provision. (Caleb Orozco v. The Attorney General of Belize et al., supra, ¶ 1.)

The Constitution of Belize protects the right to dignity in the Preamble, fundamental freedoms in section 3 (in particular protection for family life, personal privacy, the privacy of one’s home and other property, and recognition of one’s human dignity, under 3c); the right to equal protection in section 6, and respect for private and family life and non-arbitrary subjection to unlawful interference with privacy in section 14. (Constitution of Belize (as in force on Mar. 1, 2012), Belize National Assembly website (click on download link to view text.) The claimant also invoked sections 11, 12, and 16 of the Constitution, on freedom of conscience, freedom of expression, and protection from discrimination, respectively. (Caleb Orozco v. The Attorney General of Belize et al., supra, ¶ 6.)

Historical Background of the Offense

The ruling by Chief Justice Kenneth Benjamin contains an overview of the history of section 53. (Id. ¶¶ 7-12.) According to the ruling, English common law recognized “the crime of sodomy as an offence against God,” as mentioned in two treatises both written around 1300. (Id. ¶ 7.)  Subsequently, the offense was tried in ecclesiastical courts, until 1533, when the crime of sodomy was reinstituted in secular courts and made punishable by death. (Id. ¶ 8.) It was later superseded by section 61 of the Offences Against the Person Act, 1861, in which the death penalty was replaced by a sentence imprisonment for life or a term of at least ten years. (Id.)

A Criminal Code drafted for the British Caribbean colonies and brought into force in Belize (British Honduras at the time) on December 15, 1888, provided for life imprisonment with hard labor, and for flogging at the court’s discretion, of anyone convicted of “unnatural carnal knowledge of any person, with force or without the consent of such person”; as the Justice points out, “[n]oticeably, buggery (with consent) and bestiality were classified separately as public nuisances.” (Id. ¶ 9.) This wording of the unnatural carnal knowledge offense was replaced in Ordinance No. 4 of 1944 with wording substantially similar to the present section 53; it removed the conditions of use of force and lack of consent and introduced the element of bestiality. (Id. ¶ 10.) Subsequently, consensual homosexual conduct was decriminalized in England and Wales with the adoption of the Sexual Offences Act 1967. (Id.)

According to Justice Benjamin, “the scope of section 53 has not been judicially explored within the jurisdiction of Belize,” and “[t]here is no known statutory or clear judicial definition of the terms ‘carnal intercourse’ or ‘against the order of nature.'” (Id. ¶ 13.)

The Judgment

Some highlights of the decision of Justice Benjamin are presented below.

  • Standing

According to the court, “[t]he argument stripped bare was that the claimant must not only show that he is a homosexual but also that he is likely to be prosecuted.” (Id. ¶ 43.) In regard to the latter contention and the question of the claimant’s standing to bring suit, the court noted that in the case of Tan Eng Hong v. Attorney General, the Singapore Court of Appeal “rejected the proposition that a violation of constitutional rights can only be shown by a subsisting prosecution.” (Id. ¶ 50; 2012 SGCA 45, ¶ 184.) Based on that reasoning, Justice Benjamin stated, the claimant did “enjoy the requisite standing to bring the claim for constitutional redress.” (Caleb Orozco v. The Attorney General of Belize et al., supra.)

  • Dignity

In regard to the issue of whether section 53 of the Criminal Code is inconsistent with the fundamental rights guaranteed to the claimant by the Constitution, the Justice acknowledged that human dignity is a concept that is hard to define. However, he disagreed with the submission of the defendant that the right to human dignity in section 3(c) of the Constitution is not enforceable pursuant to section 20 of the Constitution (on the enforceability of constitutional protections through petitioning the Supreme Court). (Id. ¶ 64.)

The claimant contended that section 53 was in breach of the right to recognition of his human dignity by:

(i) stigmatizing him as being a criminal by virtue of being a homosexual; and

(ii) categorizing consensual male homosexual acts in private with forced intercourse, sex with minors, and sex with animals. (Id. ¶ 65.)

The Justice concurred, stating, “[i]nasmuch as section 53 embraces acts involving both males and females the impact on the dignity of a homosexual man is disproportionate given the deep stigmatization caused by them being the primary targets.” (Id.) He held “that section 53 is in breach of the dignity of the claimant and in violation of section 3(c). Further, such breach operates to inform the other rights from which the concept of human dignity emanates.” (Id. ¶ 67.) He stated, moreover, “inasmuch as section 53 is framed in gender neutral language, the evidence demonstrates that it is discriminatory in its effect.”  (Id. ¶ 92.)

  • Extension of “Sex” to Include “Sexual Orientation”

Justice Benjamin extended the interpretation of “sex” in section 16(3) of the Constitution to include “sexual orientation,” noting that the United Nations Human Rights Committee held in Toonen v Australia Communication that “sex” in articles 2 and 26 of the International Covenant on Civil and Political Rights (ICCPR) was to be interpreted as including sexual orientation. He pointed out that “this interpretation has been adopted by other UN Agencies and bodies” as well.  (Id. ¶ 93; Toonen v Australia Communication, No. 488/1992, U.N. Doc. CCPR/C/50/D/488/1992, University of Minnesota Human Rights Library website; ICCPR (Dec. 16, 1966, in force on Mar. 23, 1976), Office of the United Nations High Commissioner for Human Rights website.) According to the Justice, because Belize had acceded to the ICCPR in 1996, two years after Toonen, “it can be argued that in doing so, it tacitly embraced the interpretation rendered by the UNHCR.” (Caleb Orozco v. The Attorney General of Belize et al., supra, ¶ 94.)

  • Inconsistency of Section 53 with Other Constitutional Rights

Finally, Justice Benjamin declared that section 53 of the Criminal Code “contravenes sections 3, 6, 12 and 16 of the Belize Constitution to the extent that it applies to carnal intercourse against the order of nature between persons.” (Id. ¶ 97.) He also expressed his willingness to adopt the suggestion in the written submission of the claimant that consensual private sexual acts between adults be excluded from the purview of section 53 and that the following sentence be added to section 53: “[t]his section shall not apply to consensual sexual acts between adults in private.” (Id. ¶ 99.)

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