IN THE SUPREME COURT OF BELIZE A.D. 2010 Claim No.

668 of 2010 IN THE MATTER OF THE CONSTITUTION OF BELIZE AND IN THE MATTER OF THE ALLEGED UNCONSTITUTIONALITY OF SECTION 53 OF THE CRIMINAL CODE AND IN THE MATTER OF AN APPLICATION MADE PURSUANT TO SECTION 20(1) OF THE SAID CONSTITUTION BETWEEN CALEB OROZCO UNITED BELIZE ADVOCACY MOVEMENT Claimants And THE ATTORNEY GENERAL OF BELIZE Defendant And THE COMMONWEALTH LAWYERS ASSOCIATION THE HUMAN DIGNITY TRUST THE INTERNATIONAL COMMISSION OF JURISTS Interested Parties And THE ROMAN CATHOLIC CHURCH OF BELIZE THE BELIXE CHURCH OF ENGLAND CORPORATE BODY THE BELIZE EVANGELICAL ASSOCIATION OF CHURCHES Interested Parties

Written Submissions on behalf of the Claimants

Filed by: LISA M. SHOMAN SC Attorney for the Claimants 3A Queen Street Belize City

Date: 30 January, 2012 1

Table of Contents
Pages: List of Authorities 3 to 3

1. Introduction and Background

to

2. Issues on the Interested Party Application

to

3. Do The Interested Party Applicants have the Status To Pursue the Interested Party Application 9 to 11

4. Should UNIBAM be Struck Out as a Claimant on The Basis that it Lacks Locus Standi 12 to 20

5. Should Affidavit Evidence Filed By The Claimants Be Struck Out 21 to 24

6. Should Expert Reports Be Allowed

25

to

26

7. Issues arising from Claimants Application

27

to

30

LIST OF AUTHORITIES

1. The Maya Leaders Alliance and The Toledo Alcaldes Association on behalf of the Maya villages of Toledo District & Ors v The Attorney General of Belize [SC Claim No. 366 of 2008] 2. Section 3(1) of the Interpretation Act Cap.1, Laws of Belize, Revised Edition 2000 [Tab 2] [Tab 1]

3. Farooque v Secretary of Ministry of Irrigation, Water Resources & Flood Control (Bangladesh) and Others [2000] 1 LRC 1 (SC(AD), Bangladesh [Tab 3]

4. Law Society of Zimbabwe v Minister of Finance (Attorney-General intervening) [2000] 4 LRC 52 (Supreme Court, Zimbabwe) [TAB 4]

5. Catholic Commission for Justice and Peace in Zimbabwe v Attorney General and Others [1993] 2 LRC 279 (SC, Zimbabwe) 6. Canadian Council of Churches v R and Another [1992] LRC (Const) 610 (SC, Canada) [TAB 6] [TAB 5]

7. Vriend and Others v Alberta and Others (A-G of Canada and others intervening) [1998] 3 LRC 483 (SC, Canada). [TAB 7]

INTRODUCTION AND BACKGROUND 1. Introduction and Background

1.1

The Claimants by Fixed Date Claim Form dated the day of September 2010, brought this instant claim for The Claimants seek constitutional relief and claim pursuant to Rule 56 of the Supreme Court (Civil Procedure) Rules the following:

1.

A Declaration that section 53 of the Belize Criminal Code, Chap: 101 which provides that Every person who has carnal intercourse against the order of nature with any person or animal shall be liable to imprisonment for ten years.

contravenes the constitutional rights of the Applicant enshrined in Sections 3, 6 and 14 of the Belize Constitution and affirmed in the Preamble of the Belize Constitution, and is accordingly null and void and of no effect to the extent that it applies to carnal intercourse between persons; 2. An Order striking out the words with any person or appearing in the said section 53;

3. Such other declarations and orders and such directions as this Honourable Court may consider appropriate for the purpose of enforcing or securing the enforcement of the aforementioned Declaration and Order;

4. Such further or other relief as the Court thinks just; 5. Costs. 4

1.2

The Claimants are:

(a) Caleb Orozco, Health Educator and Non-Governmental Organization worker of 5 Zericote Street, Belize City, Belize; and

(b) The United Belize Advocacy Movement (UNIBAM) incorporated on 3 April 2006 as a Charitable Company under Cap 250 of the Laws of Belize, limited by Guarantee and not having a share capital, and duly registered by Certificate No. 66/06 as a Non-Governmental Organization on 4th May 2006, pursuant to Act No 26 of 2006 of the Laws of Belize and having its registered office at 5 Zericote Street, P.O. Box 2262, Belize City, Central America.

1.3

The Defendant, is the Attorney General of Belize in whose name, all actions for constitutional redress are brought

1.4

The following parties have applied to be and have been joined as Interested Parties to these proceedings:

(a) The Commonwealth Lawyers Association; (b) The Human Dignity Trust; (c) The International Commission of Jurists; (d) The Roman Catholic Church Of Belize; (e) The Belize Church Of England Corporate Body; and (f) The Belize Evangelical Association Of Churches. 1.5 The latter three Interested Parties, being the Roman Catholic Church Of Belize, the Belize Church Of England Corporate Body and the Belize Evangelical Association Of Churches, (hereinafter the Interested Party Applicants) have filed an application (hereinafter the Interested Party

Application) pursuant to C.P.R. 32 And C.P.R. 32.6, seeking orders as follows: (1) that the Second Claimant, UNIBAM, be struck as a claimant in this action, on the basis that it has no constitutional rights guaranteed by sections 3, 6 (1) and or 14(1) of the Constitution of Belize; the affidavits of Jacqueline Sharpe dated the 8th day of April 2011 and of Ryan Goodman dated the 12th of April 2011, Nicole Haylock dated the 8th of July 2011 and Joan Burke dated the 15th of September 2011 be struck out as being filed in violation of Part 32 of the Supreme Court ( Civil Procedure) Rules , 2005; that Bruce Abramson of 41 rue de Zurich, Geneva, CH -1201, Switzerland; Grover Joseph Rees, of 1931 East Willow Street, Lafayette, Louisiana 70501; Dr. John R. Diggs Jr. of No. 2 Burnett Ave, South Hadley, Massachusetts, United States of America and Dr. Brendan Bain of 15 Margaret Drive, Hope Pastures, St. Andrew, Jamaica be admitted as expert witnesses in this matter; that the reports of the said experts be submitted to the Court and the Other parties within 60 days from the date of the appointment; that the Applicants, the Church Interested Parties, be entitled, upon serving a copy of the experts report upon the Parties to this action, be allowed to rely on the reports as evidence at the hearing of the Claim herein; Such further Order as the Court deems just. Cost.

(2)

(3)

(4)

(5)

(6) (7)

1.6

The Claimants have filed an application pursuant to C.P.R. 32 & 38.3., seeking orders as follows: The Affidavits of Bishop Phillip Wright filed on 8th September, 2011, Bishop Dorick Wright filed on 7th September, 2011, Pastor Eugene Crawford filed on the 7th September, 2011 6

1.

and Henry Lawrence filed on 13th September, 2011, be struck as a out as being filed in violation of Part 32 of the Supreme Court (Civil Procedure) Rules 2005 and/or violation of CPR Part 30(3). 2. That Ryan Goodman of 40 Washington Square, New York, NY 10012, United States of America; Jacqueline Sharpe 33A Ridgewood Towers, Four Roads, Diego Martin; Nicole Haylock of 1114 Applestar Street, Belize City, Belize; Joan Burke of 3222 St. Jude Street, Belize City, Belize and Chris Beyrer of Johns Hopkins Bloomberg School of Public Health, 111 Market Place, Suite 310, Baltimore, Maryland, United States of America be admitted as expert witnesses in this matter. That the Affidavits of Ryan Goodman, Jacqueline Sharpe Nicole Haylock and Joan Burke do stand as expert evidence to this action and be allowed to rely on the said Affidavits as evidence at the hearing of the Claim herein; That the service of reports of Ryan Goodman, Jacqueline Sharpe Nicole Haylock and Joan Burke the said experts to the Court and the Other parties be dispensed with; That the service of report of Chris Beyrer be submitted to the Court and the Other parties within 40 days from the date of the appointment; Costs; and Such further orders as the Court deems just.

3.

4.

5.

6. 7.

2. ISSUES ON THE INTERESTED PARTY APPLICATION

2.1

The first issue which arises under the Interested Party Application is whether the Interested Party Applicants have the necessary status in these proceedings to make or pursue the Interested Party Application.

2.2

If the answer to 2.1 is no, then the Interested Party Application ought to be dismissed.

2.3

On the other hand, if the answer to 2.1 is yes, then three further issues arise for determination by the Court as follows:

(a) Whether UNIBAM should be struck out as a Claimant on the basis that it lacks locus standi; and

(b) Whether Part 32 of the Supreme Court (Civil Procedure) Rules make the affidavit evidence of Jacqueline Sharpe, Ryan Goodman, Nicole Haylock and Joan Burke (filed by the Claimants) inadmissible, notwithstanding both: (i) the specific provisions of Part 56 of the Supreme Court (Civil Procedure) Rules, which apply to applications for relief under the Constitution, such as this case; and (ii) the specific terms of the Orders of the Court which directed that the evidence in this case be provided by affidavit.

(c) Whether the Interested Party Applicants should be permitted to adduce into evidence reports from three proposed expert witnesses, in addition to the affidavit evidence that the Interested Party Applicants have already filed and exchanged in accordance with the directions and order of the Court.

3. DO THE INTERESTED PARTY APPLICANTS HAVE THE STATUS TO PURSUE THE INTERESTED PARTY APPLICATION

3.1

By these proceedings the Claimants are applying for relief under the Constitution.

3.2

As expressly stated at Rule 56.1, Part 56 of the Supreme Court (Civil Procedure) Rules deals with applications for inter alia relief under the Constitution. (Part 56 also applies to Judicial Review and other similar applications, all of which are collectively referred to as applications for an administrative order).

3.3

Rule 56.7 (3) requires any application to which Part 56 applies (including applications for relief under the Constitution, such as this matter) to be supported by evidence in the form of an affidavit.

3.4

Rule 56.10 requires that any evidence in answer to any application to which Part 56 applies (including applications for relief under the Constitution, such as this matter) must be by affidavit.

3.5

Rule 56.11 (2)(a)(i) makes provision for the Judge to order that witness statements or affidavits be served.

3.6

Rule 56.11 (2)(c) and (d) make provisions for the Judge: (a) to allow any person or body appearing to have sufficient interest in the subject matter of the claim to be heard; and (b) to direct whether any such person or body is to make written or oral submissions.

3.7

By its Order dated 2nd June 2011, pursuant to an application (made by these very same Interested Party Applicants as are now making the present application) the Court ordered inter alia that:

(a) The Interested Party Applicants be joined as Interested Parties to the claim herein; (b) The Interested Party Applicants be allowed to file evidence by affidavit and to make written and oral submissions; and (c) All parties to file and exchange affidavits on or before 30th June 2011.

3.8

It is clear that Part 56 contains specific provisions that apply, and only apply, to a very limited type of civil proceedings, i.e. applications for relief under the Constitution (such as this matter) and judicial review and similar applications. These specific provisions contained in Part 56 are what apply in this case and must be interpreted and applied by the Court in order to determine the Interested Party Application.

3.9

As expressly provided for in Rule 56.11 (2)(c) and (d), the Court is empowered to allow bodies (such as the Interested Party Applicants in this matter) to be given the right to be heard where they have sufficient interest in the subject matter of the claim.

3.10

However, this does not make those bodies (here, the Interested Party Applicants in this matter) the second, third and fourth Respondents to the proceedings. Rather, they are interested parties whose role and status in the proceedings are governed by the terms of the Order of the Court under which they are given the right to be heard. The Respondent to the claim remains the Attorney General.

3.11

Rule 56.11 (2)(d) contemplates that the role and status of such interested parties will be directed by the Court to be either to make written or oral 10

submissions. In this case, the Courts Order (more generously, and without objection from the Claimants) directed that the Interested Party Applicants could make both oral and written submissions and also allowed them to file affidavit evidence. Beyond this, however, Part 56 and the Courts Order provide no role or status to the Interested Party Applicants in this matter.

3.12

Given the provisions of Part 56 and the terms of the Court Order under which they joined these proceedings, the Interested Party Applicants cannot seek to effectively confer upon themselves the role or status of coRespondents in order to: (a) seek to strike out UNIBAM as a Claimant on an interlocutory application when UNIBAMs capacity and locus standi which has not been questioned or challenged by the Respondent; (b) seek to strike out affidavit evidence which has been filed by the Claimants without any objection from the Respondent; (c) seek to introduce into the case extensive expert evidence by way of reports, rather than affidavit evidence as contemplated by Part 56 and the Orders of the Court in these proceedings.

3.13

Rather, given the provisions of Part 56 and the terms of the Court Order under which they joined these proceedings, the Interested Party Applicants are only permitted to file affidavit evidence and to make both oral and written submissions in this matter.

3.14

Accordingly, based upon the provisions of Part 56 and the terms of the Court Order under which they joined these proceedings, the Interested Party Applicants do not have any status in these proceedings, to make or pursue the Interested Party Application. It should therefore be dismissed without more, making it unnecessary to consider any of the other issues that would otherwise arise for the Courts consideration. 11

4. SHOULD UNIBAM BE STRUCK OUT AS A CLAIMANT ON THE BASIS THAT IT LACKS LOCUS STANDI

4.1

Alternatively, if the Court should hold that (notwithstanding the provisions of Part 56 and the terms of the Court Order under which they joined these proceedings) the Interested Party Applicants do have the necessary status in these proceedings, to make or pursue the Interested Party Application, then the further issue arises as to whether UNIBAM should be struck out as a Claimant on the basis that it lacks locus standi.

4.2

The ground of the application to strike UNIBAM as a Claimant in this matter is that the Second Defendant lacks locus standi to institute and maintain this Claim for constitutional relief as it has no rights under section 3, 6(1) or 14 (1) that have been, or are likely to be contravened in relation to it.

4.3

Appropriately, Courts are very slow and disinclined to strike out a Claimant on the grounds of lack of locus standi unless the facts of the particular case which presents itself are such to show that the relevant Claimant has no legitimate interest to pursue in the litigation or, in other words, can be regarded as a meddlesome busybody. The Maya Leaders Alliance and The Toledo Alcaldes Association on behalf of the Maya villages of Toledo District & Ors v The Attorney General of Belize [SC Claim No. 366 of 2008 decided 28th June 2010) (the Maya Leaders case) is instructive. [TAB 1]

4.4

4.5

The court described two of the original claimants, The Maya Leaders Alliance and The Toledo Alcaldes, as umbrella organizations for the promotion and protection of the interests of the Maya Communities in

12

Belize. These Claimants advanced a claim on behalf of the Maya villages of Toledo District in Southern Belize that their rights to property and non discrimination under sections 3, 3(d), 16 and 17 of the Belize Constitution were infringed by the Defendants.

4.6

In the Maya Leaders case, the learned Chief Justice of the Supreme Court of Belize considered the meaning of person in section 20 of the Constitution and stated that the Constitution does not for the purposes of redress define who or what a person is, and for the purpose, sought guidance from the Interpretation Act Cap.1 of the Laws of Belize, Revised Edition 2000 as to meaning of person.

4.7

Person in section 3(1) of the Interpretation Act means: a natural person or a legal person and includes any body of persons corporate or incorporate, and this definition shall apply notwithstanding that the word person occurs in a provision creating or relating to an offence or for the recovery of any fine or compensation [Emphasis added] [TAB 2]

4.8

In the Maya Leaders case, the Court noted that the definition of person in the Interpretation Act was almost unlimited in scope and that decided that the claimants, The Maya Leaders Alliance and The Toledo Alcaldes could not by any stretch of the imagination, be regarded as meddlesome busybodies and therefore lacked standing as was urged for the defendants and the interested party.

4.9

In determining that these organizations had locus standi to seek relief under the Constitution, the court relied on (see paragraphs 9 to 12 inclusive of the judgment at [TAB 1]) the following: the fact that Maya Leaders Alliance and The Toledo Alcaldes were authorized by written resolutions of their membership to bring the claim as well as provisions of

13

Rule 21.1(1) and 56.2 of the Supreme Court Rules 2005 and the meaning of person in the Interpretation Act

4.10

The broad, pragmatic approach of the Court in the Maya Leaders case is completely reflective and consistent with the approach generally adopted by Commonwealth courts. For, example, in Farooque v Secretary of Ministry of Irrigation, Water Resources & Flood Control (Bangladesh) and Others [2000] 1 LRC 1 (SC(AD), Bangladesh - the Bangladesh Environmental Lawyers Association (BELA) challenged certain government flood action plans on the ground that it would adversely affect the life, property, livelihood, vocation and environmental security of more than a million people. [TAB 3]

4.11

The question arose as to whether the BELA was any person aggrieved within the meaning of section 102 of the Bangladeshi Constitution in order to make the application. The court determined that a group of environmental lawyers with a provable, sincere, dedicated and established status had sufficient interest in the matter to have standing. The Court stated that it has jurisdiction and that the applicants competency in respect of the cause espoused would determine whether he has standing and whether the court will exercise its discretion. Further, if the applicant espoused a public cause, he need not be personally affected; however, his interest in the cause must be real.

4.12

4.13

The Bangladeshi Court in distinguishing the case of Bangladesh Sangbadpatra Parishad (Secretary General) v Government of the Peoples Republic of Bangladesh, 43 DLR (AD) 126 (SC (AD) Bang), an earlier decision, is instructive. The Court held that the applicant, an association of newspaper owners and news organisations, could not espouse a claim on behalf of its members in a representative capacity.

14

The premise was that the members were not weak, downtrodden or deprived members of society; they were well-off and could make their own claim.

4.14

The Chief Justice expressed the view that there is a broad indication that any member of the public or an organisation can espouse a claim, in pursuit of the enforcement of fundamental rights, on behalf of the weak, downtrodden or deprived section of society. It is immaterial whether or not the person or organisation is a sufferer or likely to become a sufferer.

4.15

In grounding its decision the Bangladeshi Court found there to be a preeminence of the people in the scheme of the constitution. Therefore, there can be exceptions to the traditional view that the applicant must be the person aggrieved. When the infraction of the fundamental right affects an indeterminate number of people, on the scheme of the Constitution, an indigenous association, as distinct from a local component of a foreign organisation, can espouse the claim.

4.16

The court made a particularly instructive statement in respect of representative actions. It stated that where the infraction of the fundamental right affects and indeterminate number of people it is not necessary for the multitude to bring their individual action. This pragmatic approach of the Bangladeshi Court was to find support in pragmatism. That is, it would be a mighty waste of the resources of the courts and the aggrieved parties to require them all to make individual applications to the court. Such a reasoning based in pragmatism is equally applicable in the Caribbean context, and especially, in this case.

4.17

While this case on the scheme of the Bangladeshi Constitution may be distinguishable, the reasoning is of general application. This is particularly so in view of the argument for representative actions. 15

4.18

In Law Society of Zimbabwe v Minister of Finance (Attorney-General intervening) [2000] 4 LRC 52 (Supreme Court, Zimbabwe); the court had to determine whether the Zimbabwe Law Society had standing to make an application on behalf of the affected parties. [TAB 4]

4.19

The case concerned the reasonable justifiability of a tax imposed on certain transactions which was to be collected at the time of the transaction, as opposed to a later date where the exact tax due was calculated based and the returns from the transaction. Any excess recoup by the government would be returned. The issue was whether this amounted to compulsory acquisition of properly that was not reasonably justifiable. The Law Society was established by statute to, inter alia; assist any person to obtain a judicial judgment on a disputed point of law.

4.20

In light of the fact that there was not a great deal of development in the field of class actions or representative actions, the court was disposed to give a broad view to locus standi matters. Consequently, the court held that the Law Society had standing to assist and join with a co-applicant of the case, because of its statutory empowerment. The Court further stated that the Law Society could have standing on its own. It has a real and substantial interest in the alleged contravention.

4.21

That case was decided in the same vein as Catholic Commission for Justice and Peace in Zimbabwe v Attorney General and Others [1993] 2 LRC 279 (SC, Zimbabwe). [TAB 5]

4.22

In the case the applicant a human rights organisation, whose avowed objects are to uphold basic human rights which is intimately concerned with the preservation of rights and freedoms granted to person in Zimbabwe by the Constitution was determined to have standing under Section 24(1) of the Zimbabwe Constitution. 16

4.23

The court further stated that it would be wrong on its part to deny standing, given that the persons on whose behalf the application is made are not only indigent, but confined.

4.24

The Canadian Supreme Court has been called upon to determine the matter of standing for the public interest litigation of rights. The case of Canadian Council of Churches v R and Another [1992] LRC (Const) 610 (SC, Canada) stated the test on which the court will exercise its discretion in such litigation. [TAB 6]

4.25

The court stated (1) there must be a serious issue as to the validity of the legislation in question, (2) it must be established that the plaintiff is directly affected by the legislation, if not that he has a genuine interest in its validity, and (3) whether there is any other reasonable and effective way to bring the issue before the court.

4.26

This test was applied in the case of Vriend and Others v Alberta and Others (A-G of Canada and others intervening) [1998] 3 LRC 483 (SC, Canada). [TAB 7]

4.27

A co-applicant was dismissed for non-compliance with work policy on homosexual policy. The applicant claimed, in the general, that the Individuals Rights Protection Act 1980 was in violation of the Canadian Charter of Rights to the extent that it did not include sexual orientation as grounds on which discrimination is prohibited. It was contended by the defendants that the applicant could stand only in respect of discrimination in employment. The co-applicant was joined by several advocacy associations.

4.28

The court found that the issue was a serious one. Further, it found that the only other way of having the matter of the validity of the offending

17

provisions of the legislation determining is where someone has being discriminated against on the ground of sexual orientation in housing, goods, services etc. this the court said was unreasonable. For the advocacy associations, the court held that they have standing to the extent that they are generally concerned with the rights of gays and lesbians and their protection from discrimination in all areas of their lives.

4.29

Given the stigma associated with being an LGBT person in Belize and in particular a man who has sex with men, the risks of violence and threats, it is submitted in that in this case in Belize, as shown in the Affidavits of Caleb Orozco and Kendale Trapp, in all the circumstances, it is not practicable to identify the other claimants individually, and the members of UNIBAM do allege that their said constitutional rights have has been, is being or is likely to be contravened in relation to them and that they therefore wish apply to the Supreme Court for redress and have, by resolution, expressly indicated an interest in participating in this claim and to be represented by UNIBAM.

4.30

The members of UNIBAM also claim that they are entitled to the protection of constitutional rights which are enshrined in Sections 3, 6 and 14 of the Belize Constitution and affirmed in the Preamble thereof , and that S. 53 of the Criminal Code is accordingly null, void and of no effect to the extent that it applies to carnal intercourse between persons.

4.31

In the above context, it is pertinent that:

(a) UNIBAM is a registered non-governmental organization providing health education and other services to lesbian, gay, bi-sexual and transvestite (LGBT) persons in Belize, and primarily to men who have sex with men (MSMs); (b) UNIBAM has over 68 LGBT/MSM members;

18

(c) The members of the Board of Directors of UNIBAM have duly authorized UNIBAM to act in the interest of its members and the goals of the organization in bringing this action; (d) UNIBAM and its members, being LGBT and MSM persons living in Belize, claim that they are entitled to the protection of constitutional rights which are enshrined in Sections 3, 6 and 14 of the Belize Constitution and affirmed in the Preamble thereof; (e) UNIBAM and its members allege that their constitutional rights have been, are being or are likely to be contravened in relation to them and wish to apply to the Supreme Court for redress; (f) UNIBAMs members have, by resolution, expressly indicated an interest in participating in this claim and to be represented by UNIBAM. It is urged that an organization such as UNIBAM is in fact covered by the definition of person in the Interpretation Act.

4.32

Particularly given the nature of UNIBAM as an organisation (i.e. a registered non-governmental organization providing health education and other services to LGBT persons in Belize, and primarily to men who have sex with men) it is clear that: (a) UNIBAMs membership is affected by a law which criminalises the conduct of a significant part of its membership, i.e. men who have sex with men ; (b) UNIBAMs pursuit of its objectives of providing health care and other services to LGBT persons in Belize, and primarily to men who have sex with men, are affected by a law which criminalises the conduct of a significant part of its membership, i.e. men who have sex with men.

Substantively, this case is about whether that law which criminalises the conduct of a significant part of its membership (i.e. men who have sex with men, is or is not unconstitutional. UNIBAM cannot, by any stretch of 19

the imagination, be regarded as a meddlesome busybody in this matter and therefore lacking locus standi. The Court should not accede to the Interested Party Applicants application to strike out UNIBAM as a Claimant at this preliminary, interlocutory, stage. Rather, the Court should allow the matter to proceed to a substantive determination on the merits so as to determine whether (after it has considered all of the evidence and the arguments from all parties) one or both Claimants can make out the case (in fact and law ) that the relevant legislative provision is unconstitutional. Accordingly, the Court should refuse to strike out UNIBAM as a Claimant.

4.33

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5. SHOULD AFFIDAVIT EVIDENCE FILED BY THE CLAIMANTS BE STRUCK OUT

5.1

If the Court should hold that (notwithstanding the provisions of Part 56 and the terms of the Court Order under which they joined these proceedings) the Interested Party Applicants do have the necessary status in these proceedings, to make or pursue the Interested Party Application, then the further issue arises as to whether ether Part 32 of the Supreme Court (Civil Procedure) Rules make the affidavit evidence of Jacqueline Sharpe, Ryan Goodman, Nicole Haylock and Joan Burke (filed by the Claimants) inadmissible, notwithstanding both: (a) the specific provisions of Part 56 of the Supreme Court (Civil Procedure) Rules, which apply to applications for relief under the Constitution, such as this case; and (b) the specific terms of the Orders of the Court which directed that the evidence in this case be provided by affidavit.

5.2

By these proceedings the Claimants are applying for relief under the Constitution.

5.3

As expressly stated at Rule 56.1, Part 56 of the Supreme Court (Civil Procedure) Rules deals with applications for inter alia relief under the Constitution, such as this case.

5.4

Rule 56.7 (3) requires any application to which Part 56 applies (including applications for relief under the Constitution, such as this matter) to be supported by evidence in the form of an affidavit.

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5.5

Rule 56.10 requires that any evidence in answer to any application to which Part 56 applies (including applications for relief under the Constitution, such as this matter) must be by affidavit.

5.6

Rule 56.11 (2)(a)(i) makes provision for the Judge to order that witness statements or affidavits be served.

5.7

By its Order which was made pursuant to an application made by the very same Interested Party Applicants in this matter and dated 2nd June 2011, the Court ordered inter alia that: (a) The Interested Party Applicants be joined as Interested Parties to the claim herein; (b) The Interested Party Applicants be allowed to file evidence by affidavit and to make written and oral submissions; and (c) All parties to file and exchange affidavits on or before 30th June 2011.

5.8

It is clear that Part 56 contains specific provisions that apply, and only apply, to a very limited type of civil proceedings, i.e. applications for relief under the Constitution (such as this matter) and judicial review and similar applications. These specific provisions contained in Part 56 are what apply in this case and must be interpreted and applied by the Court in order to determine the Interested Party Application.

5.9

It is clear that the Court by Order directed - as it is empowered to do under Rule 56 (2)(a)(i) - that the evidence in this case was to be by affidavits to be filed and exchanged.

5.10

It is clear that all parties, including the Interested Party Applicants (at least initially) acted in a manner that was entirely consistent with the Courts direction that the evidence in this case was to be by affidavits to be filed and exchanged. In this regard, the Interested Party Applicants filed their 22

evidence (including evidence of religious theory and personal opinion) in the form of the affidavits of Bishop Phillip Wright filed on 8th September, 2011, Bishop Dorick Wright filed on 7th September, 2011, Pastor Eugene Crawford filed on the 7th September, 2011 and Henry Lawrence field on 13th September, 2011.

5.11

Yet, belatedly and in a manner which is inconsistent with their own filing of evidence by affidavits, the Interested Party Applicants now seek to assert that Part 32 of the Supreme Court (Civil Procedure) Rules make the affidavit evidence of Jacqueline Sharpe, Ryan Goodman, Nicole Haylock and Joan Burke (filed by the Claimants) inadmissible, notwithstanding both:

(a) the specific provisions of Part 56 of the Supreme Court (Civil Procedure) Rules, which apply to applications for relief under the Constitution, such as this case; and (b) the specific terms of the Orders of the Court which directed that the evidence in this case be provided by affidavit.

5.12

There is no basis for the Interested Party Applicants to now contend that the Claimants were required to first comply with the provisions of Part 32 in order to file the affidavit evidence of Jacqueline Sharpe, Ryan Goodman, Nicole Haylock and Joan Burke and that this affidavit evidence should be struck out for failure to comply with Part 32 particularly given: (a) The fact that the provisions of Part 56 expressly apply and govern applications for relief under the Constitution, such as this case; (b) The fact that the Court has specifically directed affidavit evidence in this case be filed and exchanged between the parties; and (c) The fact that all of the parties (including the Interested Party Applicants themselves) have already complied with such direction from the Court to file and exchange their affidavit evidence. 23

6. SHOULD EXPERT REPORTS BE ALLOWED

6.1

If the Court should hold that (notwithstanding the provisions of Part 56 and the terms of the Court Order under which they joined these proceedings) the Interested Party Applicants do have the necessary status in these proceedings, to make or pursue the Interested Party Application, then the further issue arises as to whether the Interested Party Applicants should be permitted to adduce into evidence reports from three proposed expert witnesses, in addition to the affidavit evidence that the Interested Party Applicants have already filed and exchanged in accordance with the directions and order of the Court.

6.2

By these proceedings the Claimants are applying for relief under the Constitution.

6.3

As expressly stated at Rule 56.1, Part 56 of the Supreme Court (Civil Procedure) Rules deals with applications for inter alia relief under the Constitution, such as this case.

6.4

Rule 56.7 (3) requires any application to which Part 56 applies (including applications for relief under the Constitution, such as this matter) to be supported by evidence in the form of an affidavit.

6.5

Rule 56.10 requires that any evidence in answer to any application to which Part 56 applies (including applications for relief under the Constitution, such as this matter) must be by affidavit.

6.6

Rule 56.11 (2)(a)(i) makes provision for the Judge to order that witness statements or affidavits be served.

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6.7

By its Order dated 2nd June 2011, the Court ordered inter alia that:

(d) The Interested Party Applicants be joined as Interested Parties to the claim herein; (e) The Interested Party Applicants be allowed to file evidence by affidavit and to make written and oral submissions; and (f) All parties to file and exchange affidavits on or before 30th June 2011.

6.8

It is clear that Part 56 contains specific provisions that apply, and only apply, to a very limited type of civil proceedings, i.e. applications for relief under the Constitution (such as this matter) and judicial review and similar applications. These specific provisions contained in Part 56 are what apply in this case and must be interpreted and applied by the Court in order to determine the Interested Party Application.

6.9

It is clear that the Court by Order directed - as it is empowered to do under Rule 56 (2)(a)(i) - that the evidence in this case was to be by affidavits to be filed and exchanged.

6.10

It is clear that all parties, including the Interested Party Applicants (at least initially) acted in a manner that was entirely consistent with the Courts direction that the evidence in this case was to be by affidavits to be filed and exchanged. In this regard, the Interested Party Applicants filed their evidence (including evidence of religious theory and personal opinion) in the form of the affidavits of Bishop Phillip Wright filed on 8th September, 2011, Bishop Dorick Wright filed on 7th September, 2011, Pastor Eugene Crawford filed on the 7th September, 2011 and Henry Lawrence which was filed on 13th September, 2011.

6.11

Yet, belatedly and in a manner which is inconsistent with their own filing of evidence by affidavits, the Interested Party Applicants now seek to assert 25

that Part 32 of the Supreme Court (Civil Procedure) Rules make the affidavit evidence of Jacqueline Sharpe, Ryan Goodman, Nicole Haylock and Joan Burke (filed by the Claimants) inadmissible, notwithstanding both: (a) the specific provisions of Part 56 of the Supreme Court (Civil

Procedure) Rules, which apply to applications for relief under the Constitution, such as this case; and

(b)

the specific terms of the Orders of the Court which directed that the

evidence in this case be provided by affidavit, pursuant to Case Management, at which time this point was not only raised, but were agreed to by Counsel for and on behalf of the said Interested Party Applicants. .

6.12

There is no basis for the Interested Party Applicants to now seek to adduce expert reports from three new witnesses under Part 32, particularly given:

(a) The fact that the provisions of Part 56 expressly apply and govern applications for relief under the Constitution, such as this case; (b) The fact that the Court has specifically directed affidavit evidence in this case be filed and exchanged between the parties; and (c) The fact that all of the parties (including the Interested Party Applicants themselves) have already complied with such direction from the Court to file and exchange their affidavit evidence.

6.13

The Claimants therefore submit that this application by the Interested Parties be refused by this Honorable Court.

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7. ISSUES ARISING FROM CLAIMANTS APPLICATION

7.1

The Claimants have filed an application pursuant to C.P.R. 32 & 38.3., seeking orders as follows: The Affidavits of Bishop Phillip Wright filed on 8th September, 2011, Bishop Dorick Wright filed on 7th September, 2011, Pastor Eugene Crawford filed on the 7th September, 2011 and Henry Lawrence filed on 13th September, 2011, be struck as a out as being filed in violation of Part 32 of the Supreme Court (Civil Procedure) Rules 2005 and/or violation of CPR Part 30(3). That Ryan Goodman of 40 Washington Square, New York, NY 10012, United States of America; Jacqueline Sharpe 33A Ridgewood Towers, Four Roads, Diego Martin; Nicole Haylock of 1114 Applestar Street, Belize City, Belize; Joan Burke of 3222 St. Jude Street, Belize City, Belize and Chris Beyrer of Johns Hopkins Bloomberg School of Public Health, 111 Market Place, Suite 310, Baltimore, Maryland, United States of America be admitted as expert witnesses in this matter. That the Affidavits of Ryan Goodman, Jacqueline Sharpe Nicole Haylock and Joan Burke do stand as expert evidence to this action and be allowed to rely on the said Affidavits as evidence at the hearing of the Claim herein; That the service of reports of Ryan Goodman, Jacqueline Sharpe Nicole Haylock and Joan Burke the said experts to the Court and the Other parties be dispensed with; That the service of report of Chris Beyrer be submitted to the Court and the Other parties within 40 days from the date of the appointment;

1.

2.

3.

4.

5.

7.2

The Claimants submit that if the Court agrees, on the Interested Parties Application, to strike out the affidavits of Jacqueline Sharpe dated the 8th day of April 2011 and of Ryan Goodman dated the 12 th of April 2011, Nicole Haylock dated the 8th of July 2011 and Joan Burke dated the 15th of September 2011 be struck out as being filed in violation of Part 32 of the 27

Supreme Court ( Civil Procedure) Rules , 2005; then on the same basis, the Court should strike out the Affidavits filed by Bishop Phillip Wright filed on 8th September, 2011, Bishop Dorick Wright filed on 7th September, 2011, Pastor Eugene Crawford filed on the 7th September, 2011 and Henry Lawrence filed on 13th September, 2011, as being filed in violation of Part 32 of the Supreme Court (Civil Procedure) Rules 2005 and/or violation of CPR Part 30(3). 7.3 In addition, as stated in paragraph 4 of the Third Affidavit of Caleb Orozco, his belief on the Affidavits of Bishop Phillip Wright filed on 8 th September, 2011, Bishop Dorick Wright filed on 7th September, 2011, Pastor Eugene Crawford filed on the 7th September, 2011 and Henry Lawrence filed on 13th September, 2011, is clearly stated. 7.4 The Affidavit of Harry Lawrence, a newspaper Publisher, gives opinion evidence not based on fact, and containing no supporting evidence, at paragraphs 4 -9; and is scandalous, irrelevant and oppressive.

7.5

To refer, for example to the commencement of the present action via fixed date claim form as per Rule 56 of the CPR in paragraph 6 thereof as the clandestine way in which this action was introduced to this honorable court almost by stealth, without prior notice to anyone. (emphasis added) is not only scandalous, but is devoid of factual basis.

7.6

Likewise, paragraph 4 boldly asserts the affiants opinion that any revision of that law that would have the effect of publicly approving homosexual acts between consenting adults would be interpreted as license for those persons who advocate gay love to recruit and proselytize and expand their following among the young people of our country (emphasis added). This is not only irrelevant, but also completely lacking in any factual support.

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7.7 7.8

Paragraph 5 is strictly personal opinion, as are paragraphs 6-9. Paragraph 3 is a blend of personal opinion and personal observation without more.; and the Claimants Applicants apply to strike out the entire affidavit of Harry Lawrence on the basis that it offends the general rule that an affidavit may contain only such facts as the deponent is able to prove from his own knowledge; and further that it does not contain any source for any matters of information and belief, and also contains scandalous, irrelevant or otherwise oppressive matter contrary to Rule 30.3 of the CPR.

7.9

The same Rule is invoked in respect of the Affidavits of Bishop Phillip Wright filed on 8th September, 2011, Bishop Dorick Wright filed on 7th September, 2011, Pastor Eugene Crawford filed on the 7 th September, 2011 which would be in violation of Part 32 of the Supreme Court (Civil Procedure) Rules 2005 and/or violation of CPR Part 30(3).

7.10

The Claimants Applicants ,also submit that if the Court is minded to strike out the affidavit evidence of Jacqueline Sharpe, Ryan Goodman, Nicole Haylock and Joan Burke (filed by the Claimants) inadmissible, notwithstanding both the specific provisions of Part 56 of the Supreme Court (Civil Procedure) Rules, which apply to applications for relief under the Constitution, such as this case; and the specific terms of the Orders of the Court which directed that the evidence in this case be provided by affidavit; then it would only be just in the circumstances to allow Ryan Goodman of 40 Washington Square, New York, NY 10012, United States of America; Jacqueline Sharpe 33A Ridgewood Towers, Four Roads, Diego Martin; Nicole Haylock of 1114 Applestar Street, Belize City, Belize; Joan Burke of 3222 St. Jude Street, Belize City, Belize to be admitted as expert witnesses in this matter and provide that the Affidavits of Ryan Goodman, Jacqueline Sharpe Nicole Haylock and Joan Burke do stand as expert evidence to this action and that the Claimants Applicants be 29

allowed to rely on the said Affidavits as evidence at the hearing of the Claim herein; and that the service of reports of Ryan Goodman, Jacqueline Sharpe Nicole Haylock and Joan Burke the said experts to the Court and the Other parties be dispensed with;

7.11

The Claimants Applicants also submit that if the Court do allow the Interested Parties Applicants to add expert witnesses at this juncture, that Chris Beyrer of Johns Hopkins Bloomberg School of Public Health, 111 Market Place, Suite 310, Baltimore, Maryland, United States of America be admitted as an expert witnesses in this matter; and that the reports of all the said experts be submitted to the Court and the Other parties within 60 days from the date of the appointment; and that that the Applicants, the Church Interested Parties, be entitled, upon serving a copy of the experts report upon the Parties to this action, be allowed to rely on the reports as evidence at the hearing of the Claim herein.

7.12

The Claimants Applicants also ask for other Orders as the Court deems necessary, as a consequence.

7.13

The Claimants Applicants ask for costs since they were prepared to work out these matters with the Interested parties and instructed Counsel to tender an offer for consideration to which the Interested Parties have not yet responded.

_______________________ LISA M. SHOMAN S.C. Attorney for the Claimants Applicants January 30, 2012 30