The Jeff Cumberbatch Column – The Human Right to Sexual Preference

One cannot fail to notice the inconsistency of those rejecting human rights their rejection takes place in the public square created by human rights. It is difficult to reject human rights without using them.” –Filip Spagnoli  Making Human Rights Real

Discriminations are never a sign of a civilized society. What makes us civilized is our act of liberated kindness with other people beyond the man-made primitive citadels of gender, race, religion and sexual orientation.” ― Abhijit NaskarEither Civilized or Phobic: A Treatise on Homosexuality

At one level, it is perhaps understandable that the Church (in fact, a random group comprising an apostle, a reverend (sic), two bishops and a sociologist) should be prepared to fight against any attempt to make homosexual preferences a human right in Barbados. I refer to the back page report in Friday’s edition of the Barbados Advocate, headlined Church decries LGBT agenda.

After all, they can cite any number of Biblical injunctions in support of their position against the practice and, if they would be true to their vocation, they must be equally condemnatory.

At another level, however, this reasoning does not by itself lead inexorably to the thesis that homosexuality per se or homosexual acts should attract the awesome power of the state’s legislative and prosecutorial machinery -considerations that are usually premised on more terrestrial and contemporary conditions.

In any case, there is already some degree of disconnect between these two arms of the state machinery with the legislative provision seeking disproportionately to criminalize acts of buggery and gross indecency even in private between consenting adult partners and the prosecutorial arm apparently restricting itself to the strict enforcement of the law in cases only where these acts are non-consensual, involve minors incapable of consent as victims, or occur in public.

Indeed, especially in the instance of gross indecency, the sole offence that might encompass female homosexual conduct, the definition is risibly comprehensive, seemingly being capable of covering any form of sexual interaction whatsoever between any couple anywhere. According to section 12 (3) of Cap.154;

An act of “serious indecency” is an act, whether natural or unnatural by a person involving the use of the genital organs for the purpose of arousing or gratifying sexual desire”

In such a legislative context, the “agenda”, if any, of the LGBT community must be to remove any provision that might cause individuals therein to engage in criminal conduct every time he or she chooses to express him or herself sexually. And the unlikelihood of a criminal charge and prosecution by the State scarcely detracts from the discriminatory nature of a law that is not similarly applied to traditional heterosexual conduct. In fact, this official selective enforcement is itself a cogent argument for the repeal and reform of the provisions.

According to the assemblage as reported, this agenda “equates to “a new form of colonialism because it hasn’t emerged from Barbados, “ but is part of “a global agenda to influence different nations.”

In my view, this assertion does not serve to weaken the force of the local argument given the generally accepted universality of human rights. History has shown us that it takes some degree of geopolitical clout to lead the fight to reverse decades of the unfair treatment of others whether in the context of apartheid, woman’s liberation or the mandatory death penalty. International intervention in a local issue, if it does exist, should not always be perceived as a negative.

The antagonist argument goes a bit further though. According to the chief spokesman, “This is a new attempt to colonize us with certain values and certain perspectives, and if we don’t conform, then the argument is that we can suffer economically, and that we can suffer socially because they withdraw support, they withdraw aid…”

I feel certain that some wag will wish to observe that we seem to be doing quite well by ourselves in suffering economically without the withdrawal of aid from these neo-colonists, and it is at least ironic to make the point about tying financial aid to behavioural conditionalities as we prepare to enter shortly into an IMF agreement.

The sociologist was even more persuaded that the agenda was not a local initiative. She holds the view that the local organizations have no say in the matter of the agenda being pushed, citing the assistance they have been receiving from an internationally recognized organization. Nevertheless, she was also convinced of the small local group’s futility in attempting to change God’s word, “but they cannot ever.” This last is patently irrefutable.

But what is this agenda? As perceived by the evangelical group, it includes an attempt to make the personal sexual preference of a very small group a human right in Barbados; to impose the homosexuality (sic) lifestyle as a natural organic sexual behaviour and not a learned behaviour on the majority of Barbados‘ population; to deconstruct marriage and to reconstruct it to legitimize same sex partnerships as opposed to the Adam and Eve marriage union for the entire population. This indeed a weighty charge sheet laid against the movement.

First, as any heterosexual will attest, one’s personal sexual activity is already a fundamental human right, unless a human right must also satisfy the criterion of another’s sanction in order to exist. Second, it is quite unclear how one could “impose” a sexual lifestyle on the majority of an unwilling population; and, third, as the Barbados Advocate editorial for last Sunday observed, in the absence of any public call for the legalization of same sex marriage in Barbados, this notion of deconstructing traditional marriage is tantamount to shouting fire in a crowded theatre when there is none there.

The timing of the intervention here seems clearly designed to detract from participation in the LBGT Pride march planned for Sunday. It (the intervention) may be successful, I do not know. But the legal determination of whether the LBGT movement or the evangelical group is correct on the rather technical point of human rights will ultimately be a matter for the Inter-American Court of Human Rights and its interpretation of the relevant Articles of the American Convention on Human Rights that we have agreed to uphold.

The Jeff Cumberbatch Column – Re-affirming the Equality of Human Dignity

“The preamble to the Charter provides an important element in defining

Canada, but recognition of the supremacy of God, emplaced in the

supreme law of Canada, goes no further than this: it prevents the

Canadian state from becoming officially atheistic. It does not make

Canada a theocracy…” per Muldoon J (Federal Court of Canada)


For the second time in fewer than two years, a regional court has declared that the criminalization of act of buggery between consenting adult males in private is unconstitutional.

In August 2016, in Caleb Orozco v the Attorney General of Belize, the Supreme Court of that jurisdiction ruled that section 53 of the Belize Criminal Code that criminalized “carnal intercourse against the order of nature” with a dissuasive penalty of ten years imprisonment, sought to include within its ambit consensual sexual conduct between adult males in private and thus disproportionately impacted on the lives of gay men thereby violating their constitutionally guaranteed rights to dignity, privacy, equality before the law and non-discrimination on the grounds of sex. Nor could such legislation be deemed justifiable on the basis of a vague public morality. Moreover, it was inconsistent with Belize’s international treaty obligations that served to inform the interpretation of the Constitutional text.

On Thursday last, in Trinidad & Tobago, Mr Justice Rampersad similarly declared that sections 13 and 16 of the Sexual Offences Act 1986 in that jurisdiction were unconstitutional, illegal, null, void, invalid and of no effect to the extent that these laws criminalized any acts constituting consensual sexual conduct between adults. So far as is relevant, these sections read:

13 (1) A person who commits the offence of buggery is liable on conviction to imprisonment for twenty-five years

13(2) In this section “buggery” means sexual intercourse per anum by a male person with a male person or by a male person with a female person.

16 (1) A person who commits an act of serious indecency on or towards another is liable on conviction to imprisonment for five years.

(2) Subsection (1) does not apply to an act of serious indecency committed in private between—

(a) a husband and his wife;

(b) a male person and a female person each of whom is sixteen years of age or more, both of whom consent to the commission of the act; or

(c) persons to whom section 20(1) and (2) and (3) of the Children Act apply.

(3) An act of “serious indecency” is an act, other than sexual intercourse (whether natural or unnatural), by a person involving the use of the genital organs for the purpose of arousing or gratifying sexual desire.

It might be of interest to note that section 14, which criminalizes bestiality, carries a maximum penalty of fifteen (15) years, perhaps to signal the official revulsion felt at the act of buggery as opposed to that of bestiality. Also to be noted in this connection is that section 16 may criminalize lesbianism as an act of serious indecency.

I have not had the opportunity so far to read the text of his judgment, but it would be interesting to see how Rampersad J managed to avoid the strictures of the savings (existing) law clause, section 6 of the Trinidad & Tobago Republican Constitution, that is similar to our section 26.

However, on a perusal of the Sexual Offences Act, itself enacted in 1986, I note that both sections 13 and 16 were amended in 2000 and again in 2012. In order to satisfy the definition of an existing law therefore and to preserve their immunity from constitutional query, these amendments would have had to satisfy the stipulations in subsections 1(b) and 1(c) of section 6-

6. (1) Nothing in sections 4 and 5 shall invalidate—

1. (a) an existing law;

(b) an enactment that repeals and re-enacts an existing law without alteration; or

(c) an enactment that alters an existing law but does not derogate from any fundamental right guaranteed by this Chapter in a manner in which or to an extent to which the existing law did not previously derogate from that right.

To the contrary, in Barbados, I do not recall that the relevant law in section 9 of the local Sexual Offences Act, Cap 154, has ever been amended since 1966, in which case it would be clearly an existing law and thus susceptible to constitutional query as being in conflict with the fundamental rights provisions of our supreme law.

While both the Belizean and Trinidadian decisions would be likely to raise eyebrows in Barbados, they are both consonant with the international human rights law on the matter.

In Nicholas Toonen v. Australia the UN Human Rights Committee ruled that a statute of the State of Tasmania prohibiting sexual contact between consenting adult men in private was in violation of the ICPR’s articles including that of non-discrimination on the basis of sex; Article 2. In subsequent rulings and observations the Committee has criticized laws that discriminate against sexual minorities in the United States.

Sexual orientation is also a ground expressly protected from discrimination in Canada and South Africa.

In Toonen, the UNHRC found it “undisputed that adult consensual sexual activity in private is covered by the concept of privacy …” The Tasmanian authorities challenged this on the basis that the laws proscribing homosexual activity were justified on public health and moral grounds, since they were intended in part to prevent the spread of HIV/AIDS in Tasmanian. However the Committee stated that:

“The Government of Australia observes that statutes criminalizing homosexual activity tend to impede public health programmes “by driving underground many of the people at the risk of infection”. Criminalization of homosexual activity thus would appear to run counter to the implementation of effective education programmes in respect of the HIV/AIDS prevention. Secondly, the Committee notes that no link has been shown between the continued criminalization of homosexual activity and the effective control of the spread of the HIV/AIDS virus”.

And in Dudgeon v. United Kingdom, the European Court of Human Rights (ECHR) found that Northern Ireland’s anti-sodomy laws constituted an interference with the applicant’s right to private life guaranteed under Article 8 of the European Convention. This was so because it caused “detrimental effects on the life of a person of homosexual orientation like the applicant”. According to the Court:

“A person’s sexual activities involve the most intimate aspect of private life so there must exist serious reasons before interferences on the part of the public authorities can be legitimate for the purpose of Article 8”.

It was claimed in response by Northern Ireland that the law protected public morals and the rights and freedoms of others. However, the ECHR ruled that though the laws did in fact serve these aims, they were unnecessary (not necessary) to achieve these aims in a democratic society and thus not proportionate.

I will return to further discussion of this matter in next week’s Musings.

To be continued…

The Jeff Cumberbatch Column – Of Signs and Wonders

Jeff Cumberbatch – Chairman of the FTC and Deputy Dean, Law Faculty, UWI, Cave Hill

I should start this week with a disclaimer. Despite its title and the epigraph, this essay has nothing at all to do with the identical hendiadys so frequently encountered in the Holy Bible and in the admonitions of the modern day end-timers. It treats rather, less loftily, a physical local sign by now notorious and the wonder of a recent judicial pronouncement emanating from the European Court of Human Rights.

That “RH” sign and public expression

For the quantum of public discourse that it has generated, that notorious sign featured on various social media, and more latterly in one section of the local printed press (not the Barbados Advocate), should have been wildly successful in raising public consciousness, if not for citizens to cease littering indiscriminately, at least for them to conjecture as to the meaning to be attributed to the letters “RH” in the sign. There is a well known Barbadian expletive that fits this abbreviation perfectly; indeed sometimes the two letters themselves are used for emphasis, and this might reasonably be presumed to have been the intention of the sign’s creators, especially since the other offered suggestions offered so far do not fit the bill, syntactically speaking.

Moreover, since the letters are used in an adjectival sense[to describe the littering], as would be the expletive at times, it might be objectively considered that the letters denoted that expletive.

This last point cannot be made too forcefully however, since the expression I am referring to, as most others of similar kind locally, may be used alternatively as a noun, an adverb, a preposition and maybe a conjunction all in the same sentence and to express varying notions. For instance one may be as bright as it, or one may be as “dumpsy” as it, as, equally, one may be either as poor as RH or as rich as RH. In fact, any two contrasting concepts will serve to make the point.

Nevertheless, in spite of its colloquial variety, it is an expression that would probably attract the attention of the local constabulary if used in a public space, and thereby render the user liable to a criminal charge of using indecent language. The constitutional guarantee of freedom of expression in section 20 of our supreme law simply does not extend that far. Indeed, it may be argued that this freedom is expressly qualified in this regard by section 20(2)(a) that immunizes from challenge any law that makes provision that is reasonably required in the interests of public morality, inter alia.

The offence of this nature is usually committed when the expletive is uttered orally. Should it make a difference that the words are not voiced here but rather suggested in a sign and not even expressly but, at worst, impliedly? There are some areas of the law, most notoriously in that pertaining to defamation, where the subjective intention of the publisher is treated as irrelevant and the meaning of the publication is guided by what the ordinary reader or listener would have understood it to mean. It is at least doubtful, however, whether such a holding should form the basis of a criminal charge where a criminal intention to use the expletive would normally be required.

Furthermore, I recall having read somewhere once of a proceeding in one of the local magistrate’s courts when an accused, wearing a T shirt with ostensibly Chinese or Japanese characters, was severely censured by the presiding judicial officer when it was finally recognized that the characters spelt out an expletive if read either upside down or from an appropriate angle. I cannot now recall whether the accused was cited for contempt although, given the nature of the expression revealed, he very well could have been. Was he any less a publisher of the offensive expression in that case than the anonymous creator[s] of the RH sign?

The wonder of the European Court of Human Rights [ECHR]

For those Barbadians, arguably not so few in number, who are opposed, bitterly, fundamentally, diametrically or otherwise, and for whatever reason, to the concept of same-sex marriage becoming a possibility in this jurisdiction, the recently reported June 2016 decision of the European Court of Human Rights that there is no human right under the European Convention on Human Rights to be party to a same-sex marriage might have come as a pleasant and welcome surprise, especially after the US Supreme Court decision in Obergfell v Hodges that imposed homosexual marriage as a right applicable in all the states of the union. In fact, the European decision is over one year old and is consistent with at least three previous holdings of that court that there is no human right to a homosexual marriage and thus the member states cannot be compelled to recognize it. This in spite of Article 12 of the Convention that reads;

“Men and women of marriageable age shall have the right to marry and to found a family. According to the national laws governing the exercise of this right.”

Despite the apparent breadth of the text however, the European Court has consistently ruled, utilizing the principle of subsidiarity; whereby the Court limits its ability to review a domestic authority’s decision and that of the doctrine of the margin of appreciation; through which member states are permitted to vary in their domestic law from their Convention obligations just so long as this variation does not cause the very essence of the Convention right to be impaired, that there is no obligation on a member state to legitimize homosexual marriage. In 2010, the ECHR held that the right in Article 12 was granted in the context of strictly traditional forms of marriage so that an Austrian couple could not allege discrimination because they were denied the possibility to marry or have their relationship recognized by Austrian law. In 2012, The Court held in a case involving a lesbian couple in a civil partnership who complained that the French courts would not allow them to adopt a child as a couple, that “in view of the social, personal and legal consequences of marriage, the applicant’s legal situation could not be said to be comparable to that of married couples.” And in 2014, the Court pronounced, in a matter from Finland, that the law did not require member states “to grant access to marriage to same-sex couples…”

I have already argued in this space that the local antagonists to same sex marriage have little to worry about. While we have not as yet enacted a provision equivalent to that in the Jamaica Charter of Fundamental Rights and Freedoms 2011 to the effect “no form of marriage or other relationship…other than the voluntary union of one man and one woman may be contracted or legally recognized in Jamaica”, This is precisely the common law position that now obtains locally and would have to be changed by appropriate legislative action, if at all.

The Jefferson Cumberbatch Column – Enforcing the Rule of Law

Caleb Orozco

Caleb Orozco

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 criminalized 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 criminalized 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 recognized 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…

The Jeff Cumberbatch Column – A Nation Under Law – Part 2

Jeff Cumberbatch - New Chairman of the FTC

Jeff Cumberbatch – New Chairman of the FTC

BU shares the Jeff Cumberbatch Barbados Advocate column – Senior Lecturer in law at the University of the West Indies since 1983, a Columnist with the Barbados Advocate

A nation under law – […] Continue reading