I took the time last Sunday to read through the ruling from the Chief Justice of Belize in the Caleb Orozco claim against the Attorney General ( the Defendant) re his breached right of “freedom to express his preference or orientation”.
Since the ruling is from an eminent jurist perhaps this unlearned reader should just smile, nod, genuflect and back off.
Being half crazy I can’t do that because I found aspects of the ruling puzzling legally and especially logically and I apologize for saying that the reasoning on a key point of law, namely, ‘public morality’ as per the constitution reminded me of an idiotic statute that was on the books in Kansas, USA, for years before the idiocy was spotted and the statute repealed.
That Kansas statute said “When two trains approach each other at a [railroad] crossing, they both shall come to a full stop and neither shall start up until the other has clean gone.”
Chief Justice Benjamin said,
“ The sole limitation relied upon by the Defendant is that of public morality. In paragraph 8 of the Ramjeet affidavit, section 9(2) is cited.”
Section 9(2) reads in part,
“9(2). Nothing contained in or done under the authority of any law shall be
held to be inconsistent with or in contravention of this section to the extent
that the law in question makes reasonable provision
(a) that is required in the interests of defence, public safety, public
order, public morality, public health…”
Some Church leaders, allowed as interested parties, raised the public morality issue and the eminent Chief Justice ruled,
“ There can be no doubt that the Reverend gentlemen deposed to views that they sincerely and conscientiously hold, and that are representative of the majority of the Christian community and perhaps of the population of Belize. However, from the perspective of legal principle, the Court cannot act upon prevailing majority views or what is popularly accepted as moral. The evidence may be supportive but this does not satisfy the justification of public morality. There must be demonstrated that some harm will be caused should the proscribed conduct be rendered unregulated. No evidence has been presented as to the real likelihood of such harm.”
So the learned jurist concedes that the views expressed by the clergymen “are representative of the majority of the Christian community and perhaps of the population of Belize” but says this “does not satisfy the justification of public morality”. I ask in amazed ignorance why not.
On what basis should a court determine public morality beyond assessing public sentiment about particular moral issues?
According to the eminent CJ one would have to establish by evidence that “some harm will be caused should the proscribed conduct be rendered unregulated.” But “[N]o evidence has been presented as to the real likelihood of such harm.”
Notice a few odd things here. The possible views of the population of Belize does not, without more, qualify as ‘public morality’! Then the Chief Justice (CJ), in my unlearned view, indulges a muddled logical stretch about the need for harm. By what legal, linguistic or philosophical canon? Public morality does not necessarily require a concept of [certain or likely] harm to qualify as public morality.
The CJ seems unaware that the construction “will be caused” is one of certainty and not equal in force to the construction “real likelihood of such harm”. This latter construction suggests a lower degree of proof along the descending spectrum, certain, likely, probable, possible.
No one can prove with certainty the consequences of most acts but some can be argued for beyond reasonable doubt (= probable or likely) but why is the harm component even invoked by the CJ?
The CJ touched on the public morality issue later thus,
“ In Patrick Reyes v R. Lord Bingham cited with approval the following statement by Chaskalson, P of the South African Constitutional Court in State of Makwanyana  (3) SA 391 (at paragraph 88):
“Public opinion may have some relevance to the enquiry, but in itself, it is
no substitute for the duty vested in the Courts to interpret the Constitution
and to uphold the provisions without fear or favour. If public opinion were
to be decisive there would be no need for constitutional adjudication …
The very reason for establishing [the Constitution], and for vesting the
power of judicata review of all legislation in the Courts, was to protect the
rights of minorities and others who cannot protect their rights adequately
through the democratic process…”
The honourable CJ could have helped non-lawyers and even the lawyers in court by showing that or how this dictum in essence is on all fours with the Belize constitutional provision in section 9(2) re public morality.
I doubt this quoted dictum is on all fours with section 9(2). The section of this dictum, “If public opinion were to be decisive there would be no need for constitutional adjudication …” is a non sequitur (the conclusion ‘there would…’ does not follow from the stated premise ‘if public…’
Bear in mind that the limitation to Orozco’s claimed right that the Attorney General relies on is a constitutional provision and as such could not be disregarded as part of constitutional adjudicaton!
The section of the judge’s ruling dealing with the claimant’s violated right to dignity was also suspect in reasoning.
The learned CJ delivered himself thus,
“ The Claimant submitted that section 53 of the Criminal Code is in breach of his fundamental right to recognition of his human dignity by:
(i) stigmatising him as being a criminal by virtue of being a homosexual…”
How does a law stigmatize any person “as being a criminal” even if one is engaged in unlawful conduct, unless that person is convicted of such offence in court? On the basis of this sloppy line of reasoning everybody could claim to be stigmatized “as being a criminal” simply by the existence of laws that proscribe certain behaviours WITHOUT EVER HAVING BEEN ARRESTED AND CONVICTED IN COURT FOR SAID BREACH OF THE LAW.
The CJ relied on a constitutional challenge to South Africa’s common law prohibition on sodomy vis-à-vis dignity and cited a dictum from Ackerman, J which says in part,
“Its symbolic effect is to state that in the eyes of our legal system all gay men
are criminals. The stigma thus attached to a significant proportion of our
population is manifest. But the harm imposed by the criminal law is far
more than symbolic. As a result of the criminal offence, gay men are at
risk of arrest, prosecution and conviction of the offence of sodomy simply
because they seek to engage in sexual conduct which is part of their
experience of being human…”
I know too little about how legal reasoning works, it seems, to be able to appreciate how these two eminent jurists can regard a legal prohibition as rendering a person as a criminal minus arrest, prosecution and conviction.
It gets worse on my jaundiced analysis in that the quoted dictum from Ackerman, J continues to say,
“There can be no doubt that the existence of a law which punishes a form
of sexual expression for gay men degrades and devalues gay men in our
broader society. As such it is a palpable invasion of their dignity and a
breach of section 10 of our Constitution …”
Say what Justice Ackerman?! How then doesn’t every penalty in law degrade and devalue people in general thus invading their dignity in breach of the South African constitution?!
CJ Benjamin immediately after reliance on Ackerman drops this howler,
“The foregoing dictum is in all respects applicable to the plight of the Claimant based on the averments in his 1st affidavit. He is entitled to pray in his aid, section 3(c) of the Constitution and assert a violation of his right to human dignity as a person.”
You have got to be kidding me, this unclear even illogical dictum is now to ground a claimed violation of a right to human dignity?
Now ponder carefully another section of the ruling by Chief Justice Benjamin,
“ The expert interviewed then Assistant Commissioner of Police Aragon who
informed that the Police did not target for arrest homosexuals in Belize based on their social [sic] orientation or sexual behaviour. However, if anal intercourse is revealed during an investigation, an arrest would be made and in most cases, the persons would be released with a warning. Crown Counsel was also interviewed in 2010 and she stated (consistent with the statistics) that: Arrests for unnatural crimes involving consensual adults are very uncommon, and by extension convictions for consensual homosexual acts among adults are even more extremely rare.” (my emphasis).
Now behold, I show you a mystery. Examine the highlighted section and note that arrests for consensual unnatural crimes are very uncommon and that convictions for consensual homosexual acts among adults are even rarer and you wonder.
How does this square with the claimed fear of arrest and sense of dignity loss re Orozco and other MSM? Something does not compute here and I would argue that this piece of evidence from the police effectively destroys any argument about a breach of right to dignity!
There is more that is puzzling legally and logically under the header ‘right to freedom of expression’ at page 33 onward.
There we read this,
“The Claimant contended in his submissions that section 53, insofar as it criminalizes consensual private sexual activities between consenting adults, is a breach of the individual’s freedom to express his or her preference or orientation.”
Are we learning that in law ‘freedom of expression’ involves or entails behaviours even proscribed ones?
Well, it seems so, because in a portion of  the CJ cites approvingly a Canadian ruling thus,
“It has been held in Erwin Troy Ltd. v Quebec (Attorney General)  1 SCR 927 by the Supreme Court of Canada that conduct can amount to expression if it attempts to convey meaning…”
I have to assume that the expression “if it attempts to convey meaning…” is self-evident to lawyers since there is no clarification in the dictum nor does the CJ offer one.
Since I don’t breathe that rarefied learned air I ask how this is determined and what exactly the expression means.
This section of the ruling ends weirdly thus,
“ The right to freedom of expression was dealt with in the written submissions of the Claimant but was not developed in oral argument by learned Senior Counsel save to say that it is consistent with and complementary to the diversity and difference of opinion contemplated in the Constitution.”
This for me is very unimpressive, legally and logically!
Finally, the ‘right to equality’ section of the ruling is something of an oddity as well. I am wondering what informs the need to deal with sexual orientation when the claimant admits that he is a homosexual whose right to dignity is breached because he dreads arrest, prosecution and conviction even though such is very rare in Belize.
Lawyers and others need to analyze carefully the reasoning within this Orozco ruling lest we give case law status to a species of that old Kansas statute.