Defective reasoning from the chief justice of Belize?

Clintom Chisolm

Sunday, August 28, 2016

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I took the time last week Sunday to read through the ruling from the chief justice of Belize in the Caleb Orozco claim against the attorney general (the defendant) regarding his breached right of "freedom to express his preference or orientation". I found aspects of the ruling puzzling, both legally and especially logically, and I apologise for saying that the reasoning on a key point of law, namely, public morality as per the Constitution of Belize, 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me of an idiotic statute that was on the books in Kansas, USA, for years before the idiocy was spotted and the statute repealed.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: "[69] The sole limitation relied upon by the defendant is that of public morality. In paragraph eight 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: "[81] 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 chief justice, 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, 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 chief justice seems unaware that the construction "will be caused" is one of certainty and is 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 chief justice?

He touched on the public morality issue later thus, "[82] 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 [1995] (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 chief justice could have helped non-lawyers like me, 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 adjudication.

The section of the judge’s ruling dealing with the claimant’s violated right to dignity was also very very, suspect in reasoning, but that’s for another time perhaps.

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