Abdool Ridwan Firaas Ah Seek v. State of Mauritius (2023)

1. Case Title & Citation

Abdool Ridwan Firaas Ah Seek v. State of Mauritius (2023)

Citation: Supreme Court of Mauritius, Judgment delivered 4 October 2023

2. Court Name & Bench

Court: Supreme Court of Mauritius

Judges: The Honourable Mr Justice D. Chan Kan Cheong and The Honourable Mrs Justice K. D. Gunesh-Balaghee JJ

Bench Type: Division Bench (Two-Judge Bench)

3. Date of Judgment

4 October 2023

4. Parties Involved

Petitioner/Claimant: Abdool Ridwan Firaas Ah Seek (also referred to as Ryan Ah Seek) – A 28-year old gay Mauritian man and LGBT activist who had lived in a same-sex relationship with his partner over the last 10 years. He is the President of Collectif Arc-en-Ciel, the oldest and biggest organisation in Mauritius that promotes the human rights of LGBTQI + individuals.

Respondent/Defendant: The State of Mauritius

Interested Parties:

• Collectif-Arc-en-Ciel (local LGBT rights organisation) as an interested party supporting the claimant
• The Director of Public Prosecutions as an interested party

5. Facts of the Case

It was brought about by a constitutional challenge to Section 250 of the Mauritian Criminal Code, a colonial-era law that dated back to 1838 and criminalised sodomy between consenting adult men. Any of the persons convicted under this provision is liable to a maximum of five years imprisonment.

Mr Ah Seek was in a committed same-sex relationship and had been so for more than 10 years, but he lived in fear of being arrested and prosecuted under Section 250. The clause was basically criminalising the natural way of expressing sexuality by homosexual men by engaging in intimate

physical relationships. The law was a legacy of the British colonial rule when the English criminal law was carried over to Mauritius and it remained in force even after independence in 1968, even after being abolished in England itself in 1967.

In 2019, Mr Ah Seek challenged the constitutionality of Section 250 in the Supreme Court of Mauritius and requested a declaration that Section 250 was unconstitutional and discriminatory. The hearing was in November 2021, and the judgment was reserved until October 2023. Collectif-Arc-en-Ciel and the Human Dignity Trust assisted with the case and international legal support was provided.

The said provision caused an aberrant scenario where being homosexual in Mauritius was not a crime but to depict homosexuality by engaging in consensual acts of intimacy in privacy was a crime. This resulted in what the court termed as a sword of Damocles hanging over the heads of homosexual men and produced psychological disturbance and fear of state persecution.

6. Issues Raised

The primary constitutional issues before the court were:

• Whether Section 250 of the Criminal Code violated the fundamental right to protection from discrimination as guaranteed under the Constitution of Mauritius
• Whether the constitutional prohibition against discrimination on the ground of “sex” should be interpreted to include “sexual orientation”
• Whether Section 250 violated other constitutional rights including:
• The right to liberty and security of the person
• The right to privacy of home and other property
• The right to protection against inhuman and degrading treatment
• The principle of equality before the law
• Whether there existed any legitimate state interest that could justify the differential treatment of same-sex intimate conduct

7. Arguments of the Parties

Arguments by the Petitioner (Mr Ah Seek):

Senior Counsel Gavin Glover, Yanilla Moonshiram (barrister-at-law) and Komadhi Mardemootoo (attorney-at-law), who appeared on behalf of Mr Ah Seek, with the assistance of Tim Otty KC and the Human Dignity Trust, argued that Section 250 contravened several provisions of the Constitution of Mauritius:

Discrimination Argument: The clause was discriminatory in that it criminalised consensual sex between adult males whereas the same act between heterosexual couples was not criminalised and neither was it criminalised between women. This amounted to sex-based and sexual orientation discrimination.

Privacy Argument: The law infringed the constitutional right to privacy as it criminalised intimate behaviour between consenting adults in the privacy of their homes.

Liberty and Security Argument: The provision was against the fundamental right to liberty and security of the individual by imposing the risk of imprisonment over natural expressions of sexuality.

Inhuman Treatment Argument: The law exposed the homosexual men to the risk of arrest, prosecution, and imprisonment because of expressing their natural sexuality, which was inhuman and degrading treatment.

Living Constitution Doctrine: The Constitution must be read as a living document with its provisions on fundamental rights being given generous and purposive interpretation in keeping with the modern day concept of human rights.

The petitioner has referred to a vast body of international jurisprudence consisting of decisions of South Africa, India, Botswana, Canada, Hong Kong, Singapore, the United States, and Belize; and the landmark case of Toonen v. Australia in the Human Rights Committee at the UN

Arguments by the Respondent (State of Mauritius):

The State argued that:

• Mauritius had already passed anti-discrimination laws against discrimination on the grounds of sexual orientation in the Equal Opportunities Act (2008) and Workers’ Rights Act (2019) 
• These protective laws showed that the State was not discriminative against homosexual individuals.
• The constitutional provisions are to be narrowly construed based on their original meaning and scope But the arguments that the State presented were quite weak and it can be seen that the State has conceded the discriminatory nature of the provision in their arguments during the proceedings.

8. Judgment / Final Decision

The Supreme Court gave a unanimous ruling which declared Section 250 of the Criminal Code as unconstitutional and discriminatory, to the extent that it criminalised consenting sexual behaviour between adult males in the privacy of their homes.

The court directed that the section 250 be interpreted in such a way that consensual sexual activities between adult males in a closed environment be out of the scope thereby decriminalising same-sex intimate behaviour.

The decision was immediately operational, and the discriminatory clause was eliminated in the legal code, along with the risk of criminal prosecution over consensual same-sex intimate behavior.

9. Legal Reasoning / Ratio Decidendi

The reasoning that the Supreme Court used was based on the following important legal principles: Constitutional Interpretation Methodology:

The court used the doctrine of the living constitution, which states that constitutional clauses, and especially those clauses that guarantee fundamental rights must be interpreted in a generous and purposive manner to keep up with the modern concept of human rights and dignity. According to the judges, the Constitution is a living document that has to adjust to the changing social conditions, and still hold its fundamental principles.

Discrimination Analysis: The court paid much attention to constitutional immunity to discrimination according to Section 3 and Section 16 of the Constitution. The judges decided that the ban on discrimination on the basis of sex ought to be construed as sexual orientation. The interpretation was termed as a well settled principle with the backing of international jurisprudence.

The court said: Do the State have any good reasons as to why they should discriminate against the plaintiff who has sexual intercourse in the only way that he can? The current case deals with the most confidential and personal details of the identity of homosexual men, i.e., the nature of the way they perform sexual intercourse.”

Substantive Analysis:

• Section 250 was held to cause unreasonable discrimination in the following ways: 
• Making the only natural way of homosexual men to have sexual intercourse a crime 
• Allowing heterosexual men to be able to engage in sexual intercourse, in a manner that is natural to them
• Creating an arbitrary distinction without legitimate justification

Colonial Legacy Recognition:

Notably, the court unequivocally recognized the colonial roots of the discriminatory law when it said: Section 250 was not introduced into Mauritius to reflect any Mauritian values but was inherited as part of our colonial history by Britain. This identification of the colonial legal impositions as against the modern Mauritians values was instrumental in the ruling.

International Law Integration:

The court relied heavily on international human rights law and comparative constitutional law, citing decisions of courts in several jurisdictions that had previously been called upon to resolve similar cases. The judgment cited the Toonen v. The Australia decision by the UN Human Rights Committee that declared that criminalisation of consensual same-sex relations was against the International Covenant on Civil and Political Rights.

Proportionality Test:

The court performed some kind of proportionality test, and the decision was that no valid state interest like national security or other interests of the population could support the discriminatory treatment of same-sex activity. The judges ruled that there had to be exceptionally good reasons why the State could reasonably intrude on the way homosexual men preferred to engage in consensual sexual intercourse in privacy and there were none.

Precedential Value:

The judgment established important precedent for:

• Interpreting constitutional equality provisions to include sexual orientation discrimination 
• Applying living constitution methodology to fundamental rights interpretation 
• Recognising the illegitimacy of colonial-era discriminatory laws
• Protecting intimate privacy rights from state interference

10. Conclusion / Observations

This landmark decision is a turning point in the Mauritian constitutional law and human rights jurisprudence. The decision demonstrates several significant legal and social developments:

Constitutional Significance: The case makes Mauritius a progressive nation in the African constitutional law that joins nations such as South Africa, Botswana, Seychelles and Mozambique in repealing discriminating provisions that existed during the colonial era. The approach of the judgment to generous interpretation of the constitution gives a blue print to future litigation on the basis of rights.

International Impact: The ruling is part of a trend in LGBTI+ rights recognition across the world, which has left a total of 65 jurisdictions criminalising same-sex intimate conduct. The fact that the judgment drew on international and comparative law shows how interconnected modern human rights jurisprudence has become.

Decolonial Legal Approach: The direct acknowledgement by the court that Section 250 was an imposition of colonial values and not of Mauritian ones is indicative of a decolonial approach to changing the law. This argument may have an impact in the future challenges of other legal provisions that were made during the colonial era and are inconsistent with current human rights.

Public Health and Social Implications: The decriminalisation eliminates obstacles to receiving healthcare and minimises stigma among LGBTI+ people, which can improve the state of public health. The United Nations agencies in Mauritius hailed the move, as it would be significant to the HIV prevention and treatment programmes.

Critical Reflection: In a jurisprudential sense, this case is a perfect example of how constitutional interpretation in post-colonial countries has changed. The court effectively managed to apply textual interpretation of the constitution to the current human rights perspective and provided judicial daring in dealing with controversial societal matters.

The judgment is powerful because it has gone into detail with regard to domestic constitutional law as well as international human rights law. Nevertheless, the ruling also suggests the persistence of the problem of legal equality in practice since legal equality has to be followed by social acceptance and institutional changes.

The case can be seen as an example of the effectiveness of strategic litigation with the help of civil society organisations and international legal networks. It shows that personal courage and legal skills and international solidarity can create a transformative social change through constitutional litigation.

Future Implications: This ruling forms significant precedent to be used in future constitutional litigation in Mauritius and gives cogent authority to challenges of a similar nature in other jurisdictions with similar constitutional orders. The methodology and rationale of the decision provide a guide to attacking other discriminatory laws and extending constitutional protection of rights.

This case is not only a legal triumph but a basic assertion of human dignity and equality under the law that removes what the court referred to as the sword of Damocles which had hanged over LGBTI+ citizens since 185 years of discriminatory legal treatment.