Wed | Jan 16, 2019

Clinton Chisholm | Judicial courage: ruling vs reasoning

Published:Sunday | December 23, 2018 | 12:00 AM
Clinton Chisholm
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The buggery law may need to be declared unconstitutional, but not on the basis of the shoddy arguments advanced in the Gleaner editorial of November 29 ('Judicial courage and the buggery law').

This editorial prompted some issues that demand clearer thinking.

1. An acute distinction needs to be made between a judicial ruling and the reasoning behind that ruling, similar to a conclusion and the supporting arguments towards that conclusion.

2. The Gleaner's lawyers should have been consulted, or they should have proofread the editorial better before it was printed to avoid what I, as a non-lawyer, saw as ignorance about how legal jurisdictions operate.

3. We all need to bury the inane criticism of a law based simply on its age. Whether the law was passed in 1864 or 1800 BC (cf. murder in the code of Hammurabi) is tangential to the content and probative value of the law!

I have been reliably informed that neither the Belize nor the Trinidad and Tobago court's ruling even on a similar case has any binding legal force on our highest court here though either ruling may be regarded as persuasive.

I make bold to say that if our highest court finds the argumentation in the Orozco ruling even persuasive, I would be very deeply disappointed in it intellectually.

I found aspects of the Orozco 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me of an idiotic statute that was on the books in Kansas, USA, for years before the idiocy was spotted and the statute repealed.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 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:

"[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 that 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, 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 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 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, and some can be argued for beyond reasonable doubt (= probable or likely), but why is the harm component even invoked by the CJ?

The section of the judge's ruling dealing with the claimant's violated right to dignity was also very, very suspect in reasoning.

The learned CJ 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: stigmatising him as being a criminal by virtue of being a homosexual ..."

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 CJ 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 by 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 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?

Critical thinking, aka logical reasoning, is necessary not only for PEP students but is for all of us, eminent jurists included.

- The Rev Clinton Chisholm, academic dean of the Caribbean Graduate School of Theology. Email feedback to columns@gleanerjm.com and clintchis@yahoo.com.