Legal but illogical reasoning from the chief justice of Belize?


Wednesday, April 25, 2018

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The learned Chief Justice of Belize Kenneth Benjamin delivered himself thus:

“[65] 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…”

This section of the judge's ruling dealing with the claimant's violated right to dignity is very suspect in reasoning.

How does a law stigmatise any person “as being a criminal” even if one is engaged in unlawful conduct, unless that person is convicted of such offence in court? Based on this sloppy line of reasoning everybody could claim to be stigmatised “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 chief justice relied on a constitutional challenge to South Africa's common law prohibition on sodomy vis--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?

Chief Justice 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 first 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:

“[40] 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 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 regarding Orozco and other men who have sex with men? 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 criminalises 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 [88] the chief justice cites approvingly a Canadian ruling thus:

“It has been held in Erwin Troy Limited v Quebec (Attorney General) [1989] 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 chief justice 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: “[89] 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 analyse carefully the reasoning within this Orozco ruling lest we give case law status to a species of that old Kansas statute.

Rev Clinton Chisholm is academic dean at Caribbean Graduate School of Theology. Send comments to the Observer or

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