Musings – Enforcing the Rule of Law

“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 criminalised 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 criminalised 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 recognised 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…