Jeff_Cumberbatch

The Jefferson Cumberbatch Column – Enforcing the Rule of Law (ii)

Caleb Orozco

Caleb Orozco

“If public opinion were to be decisive, there would be no need for constitutional adjudication…” per Chaskalson P -South African Constitutional Court [1995}

It should not be thought that the recent and eventually successful claim of Mr Caleb Orozco in the Belize High Court that I commented on last week went unchallenged by anyone, even though we have learnt subsequently that the state itself will not be appealing the decision and, I suppose, will be amending the law as recommended by Benjamin CJ in his judgment to the effect that “This section shall not apply to consensual sexual acts between adults in private”.

Readers will be aware that the debate over removal or retention of the “buggery laws” as they have come to be known, has seen conflicting stances taken by those who consider the act, especially between two males, to be a nearly unpardonable sin by reference to sundry Biblical injunctions and by those who view the expression of love between any two adults in private to be no business of the state and even less so that of the criminal law. Indeed, since the law as drafted also criminalizes acts of buggery even between consenting spouses in the privacy of their marital bed, the legislative overreach should be clear to the most rabid advocate for the retention of the legislation.

It should be no cause for surprise then that three of the interested parties opposed to Mr Orozco’s claim were the Roman Catholic Church in Belize, the Belize Church of England Corporate Body and the Belize Evangelical Association.

Whatever might have been the authority attached to the views of these bodies had the matter been adjudicated in the Biblical realm, his Lordship was careful to emphasize that “the issue before the Court must be determined by reference to the fundamental rights provisions of the Constitution and not b[y] recourse to public views”. In this regard, he adopted the reasoning of Lord Bingham in Reyes v The Queen in 2002 where he had asserted, “In carrying out its task of constitutional interpretation the court is not concerned to evaluate and give effect to public opinion…”

And while, of course, the respect and influence of the churches in Belize were not to be ignored, it bore reminder that Belize was a secular state with a written Constitution that provided for the protection of the fundamental rights and freedoms.

Benjamin CJ dealt also with the preambled provision, similarly to be found in the Barbados Constitution, that our nation is “founded upon principles that acknowledge the supremacy of God…” He considered it trite that although Belize was a predominantly Christian nation, the reference to God and the Creator went beyond Christianity, given the protection accorded to the individual freedom of conscience that was inclusive of freedom of thought and religion. In his view, the reference to God and the Creator did not serve to import religious principles into the interpretation of the Constitution. It should be noted, as an aside, that the local Constitution makes no express reference to the Creator as does the Belize provision that stipulates “the equal and inalienable rights which all members of the human family are endowed by their Creator…” He concluded that the reference to the Supremacy of God did not import any specific religious perspective but merely acknowledged the historical origin of the fundamental rights in natural law.

A similar issue had been in previous dispute in Canada where the Charter of Rights and Freedoms makes an identical reference. There, in 1991, Muldoon J affirmed that Canada remained a secular state notwithstanding the reference . On his interpretation, “It does not make Canada a theocracy …it prevents the Canadian state from becoming officially atheistic…”

The chief resistance by the churches to the claim of unconstitutionality of the provision was based on the express limitation of the right on the basis of public morality. In this context, the Anglican Bishop purported that the provision, even though infrequently enforced, was “integral to the protection of the common good and public morality to the extent that its repeal would be inimical to the preservation of society as ordained by the Creator”. While this argument would carry some force were the law to be rigorously enforced, the seemingly plain disinterest of the state where the act is consensually effected in private does not support a claim that the state has any interest here whatsoever in preserving society according to the ordinance of the Creator, the letter of the law or otherwise. His Lordship the Anglican Bishop went further, asserting that the practice of homosexual acts is inconsistent with the witness of sacred scripture and against the natural order of creation.

The President of the Association of Evangelical Churches insisted that the section existed for sundry reasons of safety public order, public morality and public health. As his brother, the Lord Bishop was before him, he is unwittingly of the belief that the mere passage of a law ensures compliance with these dictates. As most contemporary compliance metrics are structured however, the true test of the function of a law is its effectiveness, a phenomenon that fails to pass muster in light of the notorious absence of any enforcement of the provision at all.

The Roman Catholic Bishop in his submission saw the principal function of the law as preserving a moral climate for members of the society to prosper and avoid vice and he suggested further in his affidavit that “an alien world view was being foisted on the people of Belize.”

Benjamin CJ did not accept these views although he conceded that they were “representative of those of the majority of the Christian community and perhaps of the population of Belize.“ However, he noted that the Court could not act on act upon the prevailing majority view or what is popularly accepted as moral. For him, there must be demonstrated, but it had not been done, that some harm would be caused should the proscribed conduct in the provision be rendered unregulated.

Again, the ineffectiveness of the legislation through an absence of enforcement forecloses any such likelihood, for if there is no visible harm in the existing context, the removal of the provision could scarcely be expected negatively to alter circumstances.

As I hinted last week, the local position, for a number of reasons, is not in pari materia with the Belize situation. Any repeal of section 9 of the Sexual Offences Act must therefore be effected by a parliamentary act (!)and it would take quite a courageous administration to effect such a reform.

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161 Comments on “The Jefferson Cumberbatch Column – Enforcing the Rule of Law (ii)”

  1. Well Well & Consequences August 23, 2016 at 9:32 AM #

    http://ow.ly/ZW7y303vcnR

    In many states, just your presence at someones death during the commission of a felony, could mean the death penality, you could be parked 5 miles away, but if you drove the car or picked up the killer, you could be staring at the needle.

    Like

  2. Well Well & Consequences August 23, 2016 at 5:19 PM #

    http://ow.ly/2jZD303wfAW

    Warning!!!

    Like

  3. chad99999 August 24, 2016 at 7:36 AM #

    A parting comment on the subject of Jeff’s post.
    We have an obligation to try to make the world a better place. People disagree on what “better” means, but it is very hard to see how the changes in the culture since the 1950s can be described as improvements.
    We have seen greater acceptance of sexual promiscuity, but that has led to an epidemic of sexually transmitted diseases that is so severe no sane man would sleep today with an attractive woman, or with any woman, without asking for the results of her most recent blood tests.
    We have seen greater experimentation with forbidden drugs, but that has led to increases in addiction. Families have been destroyed and lives have been cut short.
    We have seen feminism take hold, stirring resentment of men by women, who now demand leadership roles in society. As a result, the Caribbean is overrun with bossy, masculinized females, who presume to govern men. Jamaica has spent much of the last decade under the grip of a semi-literate female, the great Mama P. Imagine that.
    Now we have people like Jeff promoting the homosexual agenda in the name of tolerance and enlightenment. As if we can afford more deviance and disorientation, with all the attendant financial and social costs.
    Jeff, stop trying to change the world. You are just making things worse.

    Like

  4. Bush Tea August 24, 2016 at 8:15 AM #

    @ Chad9999
    … stop trying to change the world. You are just making things worse.
    ++++++++++++++++++++++++++++++++++++++++++++++++++++++++
    Again Bushie is forced to support Chad here.

    Yuh would think that, given the RESULTS we are getting from applying our ‘educated’ solutions to the challenges we face in this world, we would at least …STOP DIGGING.
    Instead, like Stinkliar, we continue doggedly to do more of the same in asinine anticipation of different results….
    In his case, it is the increases in TAXES…
    In ours, it is the continued REJECTION of God’s basic LAWS in preference to the albino-centric shiite laws that are based on greed, selfishness and spite….

    Back in the ‘simple’, uneducated times, when our poor, forefathers KNEW NO BETTER than to try to adhere to God’s laws, they actually MADE PROGRESS….

    Like

  5. Well Well & Consequences August 24, 2016 at 8:17 AM #

    http://www.nydailynews.com/new-york/neighbors-intervene-shotgun-toting-newark-police-chase-boy-10-article-1.2762158

    People…be very careful when traveling to the US with your young black males…your young black children…they could be chased down by cops, there could be a deadly outcome.

    Chadx9. ..it will hurt you even more to learn that women ruled the world for centuries before men, do some reasearch. The mistake made was allowing men to rule..now here we are…wars, death, confusion, blight…destruction.

    Like

  6. Iggy Brathwaite August 24, 2016 at 8:59 AM #

    Chadmeister, I does read these lively blogs and cum here to enjoy the ‘partee. I does like to lighten my load of bumbaclot but comrade you does always try to darken the picture tho. My brother, the new cameras of life does allow lots of propa mods real fast and ting so all your effing blurry pics can get cleaned up real sweet so.

    Does you know that Indira Ghandi run a big-ass country. And anudder sensible woman called Golda Meir. Then they was some a dem down in Argentina and ova in de Philippines. That is a lot pussycats who does roar like tigers. So that shiittee you talking bout de Caribbean being overrun by bossy womens in some effed up changing world created by Jeff and he maguffy explanation of the law bout bulling is one dark picture.

    Good lawd bro, dem is a bunch of ahole male lion leaders who change Jamaica into a war zone and you gine cuss one tiger pussycat woman.

    Looka, you really gots to stop wid dis fish or fowl tomfooloery. Women ain’t incompetent because feminism tek hold a nutting. That is talk from someone who is either still ‘handstanding the bees and the birds or who get slapped upside de head real hard by a woman.

    And oh shittte here you squrting bout how you can’t pick up nah women for some happy time cause you is a sane man and sane men don’t lay wid nasty women. DARK PIC bro.

    You didn’t one-a dem fellas dat get de clap before your ’50 revolution I hope. Cause lots of sane men and WOMEN did had to use commonsense bout who they wud drink or do screw-drivers wid.

    Times change fah trute but one thing fah sure tho…you is a Lion dat want women sorta cooking nice meals. Yah want she to cook gourmet meals – how she learn is she business. And yah want she to be sexy and good in de bedroom, but she betta only be just good enough cause udderwise you gine be vex as shiite that she was a piecea whore although you was the only frigging man she had.

    You in easy bro…and you pics too effng dark. Use some modern tech and filter that tomfoolery with some light, fah real.

    Like

  7. Iggy Brathwaite August 24, 2016 at 10:02 AM #

    Blogmeister oh shittte save de post from de dump den. WTF going on there.

    Like

  8. Iggy Brathwaite August 24, 2016 at 10:08 AM #

    Stoopidee me. That was more to be a personal note fah real.

    But blogmeister an earlier post was treated like a dirty scab post and wasn’t let it. If you cudda let it join de other posters it would feel good.

    Yours in blogging, Iggy.

    Like

  9. Anonymice - TheGazer August 24, 2016 at 11:39 AM #

    Loving iggy’s 8:59 a.m. response to the chadmeister.
    Reading Chad is like tossing a coin.
    He gets stuff right 50% of the time.
    Still trying to figure out how he gets under the Bush Master’s radar.

    Like

  10. Vincent Haynes August 24, 2016 at 12:03 PM #

    Anonymice – TheGazer August 24, 2016 at 11:39 AM #

    My good friend and school alumnus is a chauvanistic,homophobic,misogonyst amongs other things who at times can see clearly.

    Like

  11. Well Well & Consequences August 24, 2016 at 6:10 PM #

    http://www.nydailynews.com/news/world/judge-refuses-25m-bail-fugitive-returned-africa-article-1.2764477

    I dearly love this judge, now this is what you call…enforcing the law. Lol

    Like

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