Jeff_Cumberbatch

The Jefferson Cumberbatch Column – Enforcing the Rule of Law

Caleb Orozco

Caleb Orozco

We are equally responsible to ensure State accountability to protect the human rights of ALL and not SOME! Therefore all laws, policies and actions must be consistent with the CONSTITUTION…No one person, group or community should be discriminated against because of the colour of his or her skin, his or her choice of religious belief, his or her ethnicity, or his or her sexual orientation… –Cristina Coc –Mayan Leaders Alliance (Emphasis in original)

There appears to be in these parts, I have remarked on more occasions than one, a general antipathy to a claim to a human right, except of course where it implicates the rights of the respondent individual, a friend, or a member of his or her family. For some, there is simply too much emphasis on rights by others these days, and there is likely to be a swift reminder to the asserter of one’s responsibilities as if the responsibility of others not to infringe one’s rights in a democratic society were not equally paramount.

In such a hostile environment, the decision last week by Benjamin CJ in the Belize High Court that section 53 of the Criminal Code of that jurisdiction was inconsistent with rights guaranteed under the Constitution is not likely to be met with much acclaim locally.

According to this provision, marginally noted “Unnatural Crime”

“Every person who has carnal intercourse against the order of nature with any person or animal shall be liable to imprisonment for ten years”.

It is generally understood that this offence includes intercourse per anum or buggery, and, as the equivalent-but-not-identical provision in Barbados does, it takes no account of whether the implicated parties are consenting to the act, whether it is done in private or whether the “recipient” is male or female. In Barbados, conversely, the offender is liable on conviction on indictment to a clearly dissuasive sentence of imprisonment for life, according to section 9 of our Sexual Offences Act, Cap. 154.

Benjamin CJ found that the provision violated the constitutional rights of the petitioner, Mr Caleb Orozco and other Belizeans identically situated, to human dignity, to privacy, to equality before the law and to equal protection of the law, since it criminalized sexual intimacy between consenting adults, even in private.

As to the question whether Mr Orozco had legal standing to make his claim since, unlike the claimants in Lawrence v USA, he had not been arrested or charged for an offence under section 53, Benjamin CJ was of the view that the very existence of the law made him an “un-apprehended felon” because he was liable to be arrested at any time, given his avowed lifestyle of engaging in anally penetrative sex with other men.

To the argument that the Constitution prohibited discrimination on the ground of sex and not on that of sexual orientation, it appears that the learned Chief Justice treated the former as including the latter in light of Belize’s international obligations that treats them thusly.

Such international obligations would include the International Covenant on Civil and Political Rights, to which Barbados became a state party on January 5 1973, and which was used in Nicholas Toonen v Australia by the United Nations Human Rights Committee [UNHRC] to nullify some provisions of the Tasmanian Criminal Code that criminalized all forms of sexual contact between consenting adult men in private.

In that matter, the state of Tasmania conceded that Mr Toonen’s right to privacy had been arbitrarily infringed by the provisions but sought to justify their enactment on the ground that the retention of the sections in question was justified and partly motivated by an effort to stem the spread of HIV/AIDS in the state, and that the laws were further justified on moral grounds.

The UNHRC found that consensual sexual activity in private was indeed covered by the concept of “privacy” and that the lack of the enforcement of the provisions in recent times did not prevent their continued existence from continuously and directly interfering with Mr Toonen’s privacy. The Committee found further, as Benjamin CJ ruled last week, that the reference to “sex” in article 26 of the Covenant is to be taken as including “sexual orientation”.

Officials of the local LBGT chapter have warmly welcomed the decision, according to press reports, and the question naturally arises whether a similar decision would ensue were there to be a local challenge to the constitutional validity of our section 9.

I am reluctant to offer a considered opinion on this matter, which is not as straightforward as it might appear at first blush. For one, the Barbados Constitution in its section 17 does not guarantee a right to privacy in the emphatic terms of section 14 of the Belizean Constitution-

“A person shall not be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. The private and family life, the home and the personal correspondence of every person shall be respected”.

Second, the Barbados “saving laws clause” is far more restrictive than that in Belize which limits the continued constitutional validity of laws existing at the date of Independence to a period of five years thereafter. There is no such limitation in Barbados. The Belizean provision is as follows –

“Nothing contained in any law in force immediately before Independence Day nor anything done under the authority of any such law shall, for a period of five years after Independence Day, be held to be inconsistent with or done in contravention of any of the provisions of this Part”.

In consequence, Benjamin J was not restricted from considering the constitutionality of section 53 even though it might have existed before Belize became independent in 1981, After 1986, it would have lost its freedom from constitutional question in any event. In Barbados, such a law might have been saved from constitutional query.

I expect that there will be some degree of resistance to this ruling locally, chiefly on the basis that it gives overt legal sanction to the transgression of Biblical injunction. While there is, of course, much cultural force in such an argument, it must also be recognized that Barbados is not yet a theocracy, that the determination of whether a law corresponds with the nation’s supreme law in the Constitution is a matter for temporal debate on accepted canons and principles of interpretation. Too besides, I am not at all certain that the mere existence of a law, absent its effective enforcement, should suffice to satisfy a fiat of compliance with Biblical precept.

To be continued…

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86 Comments on “The Jefferson Cumberbatch Column – Enforcing the Rule of Law”

  1. Bush Tea August 16, 2016 at 7:20 AM #

    @ balance
    For example, any manager has the legal right to make a job redundant (which is what government did to Campbell) but if this is done because of personal issues between the manager and employee (such as the employee resisting sexual advances), …or in Campbell’s case, because the employee lost favour with one of the manager’s boyfriends as a result of legitimately doing his job, then IT CANNOT BE FAIR AND JUST FOR THAT MANAGER TO SPITEFULLY MAKE THE JOB REDUNDANT.

    If the manager did so anyway, then ANY court worth it’s salt should be able to satisfy itself that the redundancy was justifiable (not constitutional – which is OBVIOUS) and failing that, disallow the victimisation.

    …and this is only one case…

    Our courts are bare shiite.
    As a result, the senior public servant are all sycophants and certified ass lickers….
    ….There is no wisdom to guide public policy…
    ….Our destiny is in the hands of a set of political jackasses
    ….Our hard -earned progress is shot
    ….our reputation is in the gutter
    …and we are the laughing stock of the whole world in everything from tourism, finance, sport, justice, management, innovation, music, education …every shiite except wuk-up and get-on like an animal.

    All thanks to the INEFFECTIVENESS of our courts….

    By the way….
    ” so you could steupss till your tongue drop out.”
    ++++++++++++++++++++++++++++++++++++++++
    Cuhdear – don’t you mean till Bushie’ teeth drop out…?
    …cause the bushman could always just stick them back in…

    But the tongue….?
    yuh want Bushie to hush up so bad??!!
    LOL
    ha ha ha

    Like

  2. Pachamama August 16, 2016 at 7:25 AM #

    ”Your ongoing predisposition to preserve (y)our physical life at all costs is symbolic of the malady that pre-empts most Bajans from enjoying life as ‘true golden vessels’ rather than enduring living as brass bowls….’

    @ Bushie

    Well said!

    This is maybe the most profound of all your writings.

    Highly prescient to those still holding fast to colonial mentalities.

    If the intent implicit was made real we wouldn’t have all these irrational fears. A lot of problems we could solve ourselves.

    Bajans like living too much but would give our lives to defend empire or empire’s interests.

    Is that not the mindset of a slave?

    Like

  3. Pachamama August 16, 2016 at 7:37 AM #

    @ Bushie

    Of course we are with you about Jeff’s and his legal profession’s predetermined acceptance of bulling as a right, you may say righteous, human activity.

    Please remember that what Jeff is part of is central the culture of imperialism. When massa says bulling is alright Jeff’s profession must genuflect under the cloak of precedence.

    Poor Jeff is merely a water carrier for the people in charge

    Like

  4. pieceuhderockyeahright August 16, 2016 at 8:20 AM #

    @ Pachamama and Bush Tea

    Whuloss!!!

    The mindset of a slave!!!

    I’ll be wunna Huckleberry hahahahahaha.

    Let me be clear.

    We are at war.

    The war is taking the lives of our youth (as the exit off the Jolly Roger and Bajan Queen, as they sit on the block, as they enter our schools and exit clueless and unemployed, as the seek tertiary education and are left high and dry without the resources to continue)

    It is taking a toll on the poor man and the not so poor – as they are now the employed poor, one paycheck from poverty)

    It is decimating our rather the chances of 95% of the population to own a piece of the rock through the insidious insertion of disproportionate contracts to a select few and economic slavery for the rest of us.

    The tools to fight war as we all know have to render the enemy useless.

    What are some of the “enemies” we seem to be fighting?? I will presume a small list.

    Enemy 1. So at the level of economic enfranchisement, if whitey or whomever the “enemy” is perceived to be, is discommoding us in the realm of contracts and land ownership then, it follows that we either compete with them in those arenas (ONLY TO LOOSE WHEN OUR POLITICIANS PROMISE 60/40% awards in favour of the “small black man”) or move to different contract types and “lands” where, for the time being, the field is level.

    MagnaCard was one such “contract and land” that was initially owned by us niggers and highjacked by Illuminat? a product which now abounds across the Bajan “landscape”. But we dun lost that one, haven’t we?

    But that is one tool that the ole man speaks of here, every effing day, which i suggest should be used in our fight to dominate “virtual, economically fruitful land”, That fight has not changed for all of these years.

    It would be most unkind of me to say that I see you, and my colleague in arms Bushie, “holding fast to colonial mentalities” since I do not see either of you gents fighting in that millieu!!

    But then again, if i continue to use the brush that you gents seem to have applied here, maybe i should, hahahahahahaaha.

    Maybe i should say things like “your individual absence from this field of endeavour is symbolic of the malady that pre-empts most Bajans from enjoying life as ‘true golden vessels’” as champions in this domain and new land of indigenous technological empowerment , instead of “enduring living as technologically devoid brass bowls…”

    Wunna problem is that wunn does talk bout sacrifice and 100 years wars and the struggle and all that but have difficulty realizing that this IS NOT AN OVERNIGHT THING and that you and I may die and not see the results of this revolution of the psyche

    At the level of moral and spiritual war, I am a dufus since I cannot understand how the legislation of Integrity legislation can induce integrity and, as all of wunna know, de ole man has little belief and confidence in the posturers of the local church.

    The blogger Retribution has stated here that “money talks and bullshit walks” and I reflect on that statement because, to all intents and purposes gents, we be talking up nuff storms and BS here in BU.

    So either it is that wunna feel that talking is part of the process of empowerment that sensitizes people as to the nature of the problem, and that some additional steps come there after or we are practicing “verbal waste foopism”

    That is unless of course either of you has transcended word and sound at 343 m/s and can convey your thoughts to others BY TELEPATHY.

    I would beg you both to share such with de ole man and not be like Artaxerxes with his keys to the Archives.

    Like

  5. David August 16, 2016 at 8:30 AM #

    What has been the vision of our political leaders in the last 8 years? Have we seen a semblance of it being played out?

    What has been the vision of our last 3 Presidents of the BA?

    Like

  6. balance August 16, 2016 at 8:45 AM #

    “Bush Tea August 16, 2016 at 7:20 AM #

    @ balance
    For example, any manager has the legal right to make a job redundant (which is what government did to Campbell) but if this is done because of personal issues between the manager and employee (such as the employee resisting sexual advances), …or in Campbell’s case, because the employee lost favour with one of the manager’s boyfriends as a result of legitimately doing his job, then IT CANNOT BE FAIR AND JUST FOR THAT MANAGER TO SPITEFULLY MAKE THE JOB REDUNDANT.

    If the manager did so anyway, then ANY court worth it’s salt should be able to satisfy itself that the redundancy was justifiable (not constitutional – which is OBVIOUS) and failing that, disallow the victimisation.”

    Shut up not at all if you so do then there will be little to tickle my fancy
    but Bushie was your allegation a part of the thrust of Mr Campbell’s attempt through the court to retain his original post

    Like

  7. Bush Tea August 16, 2016 at 12:31 PM #

    @ balance
    but Bushie was your allegation a part of the thrust of Mr Campbell’s attempt through the court to retain his original post
    +++++++++++++++++++++++++++++++++++++++++
    Don’t be simple.

    Do you think that when that police sergeant executes the illegal search warrant at your house …there will be any mention of your interest in his wife?
    …your tail will be so busy trying to protect your property and freedom that even you will forget what the REAL issue is…
    ..and good luck getting a local lawyer to raise it in court…..
    When you find such a lawyer perhaps you can share the number with Deeds…

    This is why courts need to be WISE.
    …to ask questions like “Why choose balance’s house – and not Jeff’s”; It there any other relationships between those initiating the search and anyone related to the home?; Do you know of any reason why this search would have been initiated…?
    etc….

    Were Bushie to be your judge, that Sergeant would quickly find out which god he is serving…. and the word would quickly go forth unto the land …that it does not pay to abuse police authority….

    Like

  8. Violet C Beckles August 16, 2016 at 6:31 PM #

    Donna August 16, 2016 at 1:14 AM #

    Deeds,

    I now recall reading the claim in a newspaper but I must admit I dismissed it as just too unbelievable. Even when I saw your posts here I dismissed you as a madman. This is, like Piece’s submissions on the Nazim Blackett Police Brutality blog, something I will have to spend time processing because I have been naïve for a very long time.

    Donna We hope by now you have googled, this is more truth than your Bible,

    Like

  9. Violet C Beckles August 16, 2016 at 7:17 PM #

    David August 16, 2016 at 8:30 AM #

    What has been the vision of our political leaders in the last 8 years? Have we seen a semblance of it being played out?

    What has been the vision of our last 3 Presidents of the BA?@@@

    crime and more crime corruption , the proof is all over the people faces and head at night living each day as it comes, All we need now is police to take off the entire Island of Barbados,

    Like

  10. Jeff Cumberbatch August 16, 2016 at 8:19 PM #

    Bush Tea, no lawyer worth his or her salt would ask those questions, having no idea what answer the policeman might give. Law of Evidence 101!

    Like

  11. Bush Tea August 16, 2016 at 8:47 PM #

    @ Jeff…
    Any lawyer worth any salt would be able to show that there was NO logical basis to restructure that job at that time …other than to ‘get at’ Campbell.
    …just as ANY answer by the sergeant ..as to why he chose to search balance’s house rather than yours or Bushie’s …opens him to entrapping himself with lies….

    In any case, a wise judge would explore such avenues in order to make sure that all three sides of the story are ventilated in the interest of justice…

    In Bushie’s case study for you, that judge pulled out his sword…and quickly dispensed with any need for DNA, blood or other tests….

    Like

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