Letter to Samoa
Mr Aumua Ming Leung Wai
Office of the Attorney General
P.O. Box 27
Apia, Samoa
By email: attorney.general@ag.gov.ws
Dear Attorney General
Recommendations by the Samoan Law Reform Commission to repeal sections of the Crimes Ordinance
Australian Lawyers for Human Rights (ALHR) is a network of Australian lawyers active in practising and promoting awareness of international human rights standards. We value our links with our Pacific neighbours and also support the promotion of human rights in the region. It is on this basis that we write to you.
I refer to the recent recommendation by the Samoan Law Reform Commission to repeal criminal sanctions against homosexuality and female impersonation under the Crimes Ordinance.
I understand that the Samoan Law Reform Commission, after reviewing submissions and conducting consultations recommended as follows:
– Recommendation 12: The sodomy and related offences in ss 58D and E of the Crimes Ordinance should be repealed. Section 58G of the Crimes Ordinance should be repealed to the extent it applies to sodomy.
– Recommendation 13: The impersonation of a female offence in s 58N of the Crimes Ordinance should be repealed.
On 22 March 2011, Samoa was one of 85 states to support a UN statement calling on member states to end violence, criminal sanctions and related human rights violations based on sexual orientation and gender identity. Samoa’s support for this statement is commendable and adopting the recommendations by the Law Reform Commission would be a crucial first step towards implementing the statement.
However, when Samoa appeared before the Human Rights Council for its Universal Periodic Review in September 2011, the government appeared less committed to removing criminal sanctions against homosexuality. In fact, Samoa rejected recommendations by other States to repeal its own criminal sanctions against homosexuality and female impersonation on the basis of cultural and religious reasons. This response was somewhat surprising after Samoa’s support for the UN statement in March 2011.
Samoa’s human rights obligations
The International Covenant of Civil and Political Rights (ICCPR) sets out the rights of all people to equality and non-discrimination. By ratifying the ICCPR, Samoa has committed to uphold these standards.
Article 2(1) and Article 26 of the ICCPR set out the principles of non-discrimination and equality before the law. While these articles do not expressly refer to sexual orientation or gender identity, the United Nations Human Rights Committee has held that the reference to ?sex? in Art 2 and the right to privacy (Art 17) includes sexual orientation.
Several United Nations Committees have recognised the right to non-discrimination on the basis of sexual orientation and gender identity under the Convention on the Rights of the Child (CRC) and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), both of which have been ratified by Samoa.
As part of its commitment to uphold the ICCPR, CEDAW and CRC, Samoa should protect the equality of people of all sexual orientations and gender identities.
Decriminalising homosexual activity in Pacific Island nations
The majority of Pacific Island countries have now decriminalised homosexual activity, including Vanuatu, Fiji, Guam, Niue and American Samoa. Many of these countries face similar cultural and religious challenges to Samoa.
Such laws, whether or not they are enforced, are counter-productive to the implementation of HIV/AIDS prevention programs because they drive people underground and perpetuate stigmas and stereotypes.
A recent Human Rights Watch report found that police mistreatment of men who have sex with men and transgender people is common in countries that criminalize homosexual conduct because the police can threaten arrest and because social stigma against homosexuality and sex workers shields police conduct from public outrage. Another recent study found that many Pacific men who have sex with men and transgender people experience high levels of harassment, abuse, rejection and both sexual and physical violence from a young age.
In 2005, the Fijian courts held that criminal sanctions against homosexuality were incompatible with the right to equality in the Constitution 1997 (Fiji). The government argued that the offences were required because Fiji is a conservative and religious country. The court found that while this conduct might shock and offend some people, this did not override the right to equality in the Constitution. The judge stated:
The acceptance of difference celebrates diversity. The affirmation of individual dignity offers respect to the whole of society. The promotion of equality can be a source of interactive vitality. The State that embraces difference, dignity and equality does not encourage citizens without a sense of good or evil but rather creates a strong society built on tolerant relationships with a healthy regard for the rule of law. A country so founded will put sexual expression in private relationships into its proper perspective and allow citizens to define their own good moral sensibilities leaving the law to its necessary duties of keeping sexual expression in check by protecting the vulnerable and penalising the predator.
Repealing criminal sanctions can have a massive impact on the health and wellbeing of people of all sexual orientations and gender identities by improving access to HIV/AIDS treatment and prevention and reducing violence, harassment and bullying.
It sends a strong message of equality.
Support for recommendations of the Samoan Law Reform Council
Australian Lawyers for Human Rights strongly urges the Samoan government to meet its international obligations and uphold its commitment to end violence, criminal sanctions and related human rights violations based on sexual orientation and gender identity by implementing the recommendations by the Samoan Law Commission to repeal the relevant sections of the Crimes Ordinance.
Yours faithfully,
Stephen Keim
President
Australian Lawyers for Human Rights
*Same letter was sent to Mr Tui Atua Tupua Tamasese Efi, Head of State, Government of Samoa and, Mr Tuilaepa Lupesoliai Fatialofa Sailele Malielegaoi, Prime Minister