Thomas McCosker
Encyclopedia
Thomas McCoskar, an Australia
n, visited Fiji
, was arrested, tried and sentenced to two years jail for sodomy
. An appeal was raised on the basis of Fiji's constitution
outlawing discrimination on the basis of sexual orientation. On Friday 26 August 2005, his conviction, and that of Dhirendra Nadan, the other man involved, was overturned on constitutional grounds.
Anti-sodomy laws were found to be incompatible with the country’s 1997 Constitutional Bill of Rights
. The debate over what is and isn’t culturally acceptable was at the heart of the constitutional arguments which were presented during the McCoskar High Court
case (Nadan & McCoskar v State also cited as DPP
v Nadan and McCoskar) and raised questions about the values enshrined in the country’s Bill of Rights. The Constitution of Fiji
was adopted in 1997 with a mandate to break the racially divisive legacy of the Fiji coups of 1987
. Section 43
, concerned the respect of traditional Fijian cultural values, in particular traditional titles, obligations, customs and ceremonies. It was designed to protect the specific interests of the indigenous Fijian communities. While the Methodist church
in particular has always argued that homosexuality offends it on a cultural level, and it is not culturally appropriate for Fiji, the High Court disagreed with those arguments. The case is being seen as a victory for gay rights, in a country whose colonial legacy
is dominated by strict Methodist values. (Most ethnic Fijians generally regard themselves as Christians, with approximately 65 per cent belonging to the Methodist faith.http://www.statsfiji.gov.fj/Social/religion_stats.htm)
Quite unusually among common law
countries, section 43 of the Fijian Constitution requires that the Fiji Bill of Rights be interpreted in light of “public international law” and so it was necessary for Judge Winter to call on this body of international standards in deciding the case. The judgment calls very heavily on international standards and the way in which courts in other parts of the world have dealt with these issues.
The Fiji Human Rights Commission
submitted that sections 175 (a) and (c) and 177 of the Fiji Penal Code had become invalid immediately after the 1997 Constitution came into effect. In its submission, the Commission also stated that sections 175 (a) and (c) and 177 of the Penal Code were contrary to Section 38 (2) of the Constitution as it unfairly discriminated on the ground of sexual orientation. All human rights cases on this point internationally, including in South Africa
, have come to similar conclusions. The Commission also submitted that this was really a case of prosecution for the wrong offence and that the relevant authorities should have considered charging McCoskar and Nandan for trafficking in pornography under section 188 of the Penal Code.
The Fiji Human Rights Commission stated in relation to this case:
McCoskar in mitigation in the Magistrates Court had accepted that the photographs he took were intended for sale on the internet
. Fiji has ratified the International Agreement for the Suppression of the Circulation of Obscene Publications. As such, the Fijian Government is obliged to play its role in helping curb the rising problem of trafficking in pornography and sexual exploitation of vulnerable groups of people, especially those who are poor.
McCoskar told the Melbourne newspaper The Age
: "I would have liked the Australian Government to have taken more interest in my case". The Australian government offered the usual consular assistance, but did not condemn the sentence. Amnesty International
and Human Rights Watch
had both condemned the conviction.
Australia
Australia , officially the Commonwealth of Australia, is a country in the Southern Hemisphere comprising the mainland of the Australian continent, the island of Tasmania, and numerous smaller islands in the Indian and Pacific Oceans. It is the world's sixth-largest country by total area...
n, visited Fiji
Fiji
Fiji , officially the Republic of Fiji , is an island nation in Melanesia in the South Pacific Ocean about northeast of New Zealand's North Island...
, was arrested, tried and sentenced to two years jail for sodomy
Sodomy law
A sodomy law is a law that defines certain sexual acts as crimes. The precise sexual acts meant by the term sodomy are rarely spelled out in the law, but are typically understood by courts to include any sexual act deemed unnatural. It also has a range of similar euphemisms...
. An appeal was raised on the basis of Fiji's constitution
Constitution of Fiji
The 1997 Constitution of Fiji was the supreme law of Fiji from its adoption in 1997 until 2009 when President Josefa Iloilo purported to abrogate it. It was also suspended for a period following the 2000 coup d'état led by Commodore Frank Bainimarama....
outlawing discrimination on the basis of sexual orientation. On Friday 26 August 2005, his conviction, and that of Dhirendra Nadan, the other man involved, was overturned on constitutional grounds.
Anti-sodomy laws were found to be incompatible with the country’s 1997 Constitutional Bill of Rights
Constitution of Fiji: Chapter 4
Chapter 4: Bill of Rights. Chapter 4 of the Constitution of Fiji is titled Bill of Rights. It is one of the longest chapters of the Constitution, comprising a total of twenty-three sections....
. The debate over what is and isn’t culturally acceptable was at the heart of the constitutional arguments which were presented during the McCoskar High Court
High Court (Fiji)
The High Court of Fiji is one of three courts established by Chapter 9 of the Constitution of Fiji—the others being the Court of Appeal and the Supreme Court. The Constitution empowers Parliament to create other courts; these are subordinate to the High Court, which is authorized to oversee all...
case (Nadan & McCoskar v State also cited as DPP
Director of Public Prosecutions
The Director of Public Prosecutions is the officer charged with the prosecution of criminal offences in several criminal jurisdictions around the world...
v Nadan and McCoskar) and raised questions about the values enshrined in the country’s Bill of Rights. The Constitution of Fiji
Constitution of Fiji
The 1997 Constitution of Fiji was the supreme law of Fiji from its adoption in 1997 until 2009 when President Josefa Iloilo purported to abrogate it. It was also suspended for a period following the 2000 coup d'état led by Commodore Frank Bainimarama....
was adopted in 1997 with a mandate to break the racially divisive legacy of the Fiji coups of 1987
Fiji coups of 1987
The Fiji coups of 1987 resulted in the overthrow of the elected government of Fijian Prime Minister Timoci Bavadra, the deposition of Elizabeth II as Queen of Fiji, and in the declaration of a republic...
. Section 43
Constitution of Fiji: Chapter 4
Chapter 4: Bill of Rights. Chapter 4 of the Constitution of Fiji is titled Bill of Rights. It is one of the longest chapters of the Constitution, comprising a total of twenty-three sections....
, concerned the respect of traditional Fijian cultural values, in particular traditional titles, obligations, customs and ceremonies. It was designed to protect the specific interests of the indigenous Fijian communities. While the Methodist church
Methodism
Methodism is a movement of Protestant Christianity represented by a number of denominations and organizations, claiming a total of approximately seventy million adherents worldwide. The movement traces its roots to John Wesley's evangelistic revival movement within Anglicanism. His younger brother...
in particular has always argued that homosexuality offends it on a cultural level, and it is not culturally appropriate for Fiji, the High Court disagreed with those arguments. The case is being seen as a victory for gay rights, in a country whose colonial legacy
Colonial Fiji
The United Kingdom declined its first opportunity to annex Fiji in 1852. Ratu Seru Epenisa Cakobau had offered to cede the islands, subject to being allowed to retain his Tui Viti title, a condition unacceptable to both the British and to many of his fellow chiefs, who regarded him only as first...
is dominated by strict Methodist values. (Most ethnic Fijians generally regard themselves as Christians, with approximately 65 per cent belonging to the Methodist faith.http://www.statsfiji.gov.fj/Social/religion_stats.htm)
Quite unusually among common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
countries, section 43 of the Fijian Constitution requires that the Fiji Bill of Rights be interpreted in light of “public international law” and so it was necessary for Judge Winter to call on this body of international standards in deciding the case. The judgment calls very heavily on international standards and the way in which courts in other parts of the world have dealt with these issues.
The Fiji Human Rights Commission
Fiji Human Rights Commission
The Fiji Human Rights Commission was created by presidential decree in 2009, succeeding the entity of the same name established as an independent statutory body under the 1997 Constitution of the Republic of the Fiji Islands.- The 1997 Commission :...
submitted that sections 175 (a) and (c) and 177 of the Fiji Penal Code had become invalid immediately after the 1997 Constitution came into effect. In its submission, the Commission also stated that sections 175 (a) and (c) and 177 of the Penal Code were contrary to Section 38 (2) of the Constitution as it unfairly discriminated on the ground of sexual orientation. All human rights cases on this point internationally, including in South Africa
South Africa
The Republic of South Africa is a country in southern Africa. Located at the southern tip of Africa, it is divided into nine provinces, with of coastline on the Atlantic and Indian oceans...
, have come to similar conclusions. The Commission also submitted that this was really a case of prosecution for the wrong offence and that the relevant authorities should have considered charging McCoskar and Nandan for trafficking in pornography under section 188 of the Penal Code.
The Fiji Human Rights Commission stated in relation to this case:
Trafficking in obscene publications is part of a larger picture of trafficking in persons. This involves the illegal trade in human beings and a modern form of slaverySlaverySlavery is a system under which people are treated as property to be bought and sold, and are forced to work. Slaves can be held against their will from the time of their capture, purchase or birth, and deprived of the right to leave, to refuse to work, or to demand compensation...
. Many victims of human trafficking are subjected to force, fraud, or coercion for the purpose of sexual exploitation and forced labour.
Trafficking in persons is a gross violation of human rightsHuman rightsHuman rights are "commonly understood as inalienable fundamental rights to which a person is inherently entitled simply because she or he is a human being." Human rights are thus conceived as universal and egalitarian . These rights may exist as natural rights or as legal rights, in both national...
. It violates the universal human right to life, libertyLife, liberty and the pursuit of happiness"Life, Liberty and the pursuit of Happiness" is a well-known phrase in the United States Declaration of Independence and considered by some as part of one of the most well crafted, influential sentences in the history of the English language...
, and freedom from slavery in all its forms.
McCoskar in mitigation in the Magistrates Court had accepted that the photographs he took were intended for sale on the internet
Internet
The Internet is a global system of interconnected computer networks that use the standard Internet protocol suite to serve billions of users worldwide...
. Fiji has ratified the International Agreement for the Suppression of the Circulation of Obscene Publications. As such, the Fijian Government is obliged to play its role in helping curb the rising problem of trafficking in pornography and sexual exploitation of vulnerable groups of people, especially those who are poor.
McCoskar told the Melbourne newspaper The Age
The Age
The Age is a daily broadsheet newspaper, which has been published in Melbourne, Australia since 1854. Owned and published by Fairfax Media, The Age primarily serves Victoria, but is also available for purchase in Tasmania, the Australian Capital Territory and border regions of South Australia and...
: "I would have liked the Australian Government to have taken more interest in my case". The Australian government offered the usual consular assistance, but did not condemn the sentence. Amnesty International
Amnesty International
Amnesty International is an international non-governmental organisation whose stated mission is "to conduct research and generate action to prevent and end grave abuses of human rights, and to demand justice for those whose rights have been violated."Following a publication of Peter Benenson's...
and Human Rights Watch
Human Rights Watch
Human Rights Watch is an international non-governmental organization that conducts research and advocacy on human rights. Its headquarters are in New York City and it has offices in Berlin, Beirut, Brussels, Chicago, Geneva, Johannesburg, London, Los Angeles, Moscow, Paris, San Francisco, Tokyo,...
had both condemned the conviction.
See also
- List of Australians in international prisons
- Gay rights in FijiGay rights in FijiIn 1997, Fiji became the second country in the world to explicitly protect against discrimination based on sexual orientation in its constitution. In 2009, the Constitution was abolished.-Law regarding same-sex sexual activity:...
- Religious reaction to the Reconciliation, Tolerance, and Unity Bill (Fiji)Religious reaction to the Reconciliation, Tolerance, and Unity Bill (Fiji)Religion plays an important role in Fijian society. Indigenous Fijians are overwhelmingly Christian, predominantly Methodist but with significant Roman Catholic, Assemblies of God, Seventh-day Adventist, and other Christian minorities; Indo-Fijians are mostly Hindu, with a large Muslim as well as...