Enforcing the Rule of Law (ii)

“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 ant 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.