Simeon CR McIntosh
Former Dean & Prof of Jurisprudence
Faculty of Law, UWI, Cave Hill
It rather seems that there is no sinful act, outside of the classic
crimes of murder, rape, etc, that so vexes the souls of the West Indian
people than that of sexual relations among adult men. Certainly, it is
not adulterous relations among adult men and women, which is so
pervasive in our societies that if we were to criminalise that behaviour
the overwhelming majority of us: our politicians, our judges, our
clergy, and the rest of us common folk would be committed to the
prisons; which we claim belong to her majesty. Of course, we would have
to commit members of her majesty’s immediate family as well, since they,
too, have sinned, and have fallen short of the glory of God.
But so we have it: we have criminalised sexual relations among some;
and we adamantly refuse to have the legislation repealed, even when this
may aid in the adoption of effective policies to combat the spread of
the dreadful disease of HIV/Aids. What is especially sad about all this
for me is that our politicians, judges, and lawyers, et al to grasp an
essential truth: that the criminalisation of same-sex relations among
consenting adults is private and in fact in violation of the fundamental
principles articulated in our various constitutional texts. So when our
Prime Minister, the Hon Freundel Stuart, proclaimed, in effect, that
Barbados would not decriminalise homosexuality in contravention of those
values that we hold most dear, at the directive of Great Britain and
the United States, I intoned that I agree: we should rather do so in
fidelity to those constitutional principles to which we have committed
ourselves.
In similar vein, when, as Attorney General, the Hon Freundel Stuart
proclaimed that Barbados may have to repeal the mandatory death penalty
law and, possibly, amend Section 26 of the Constitution so as to bring
Barbados in line with its international human rights obligations, again,
I agreed; and I intoned that Barbados should indeed repeal its
mandatory death penalty law, because that law is morally repugnant to
the Constitution. And Section 26 of the Constitution should be amended
because, as written, that particular provision allows for a rather
supercilious reading of the Constitution by the Privy Council and our WI
judges, which may result in ordinary legislation overriding the
fundamental rights provisions of the Constitution(s). That was most
evident in the Ophelia King case.
Homosexuality
It bears noting that in the case of Barbados and those jurisdictions
with a constitutional savings law clause, the law criminalising
homosexuality is saved and is therefore said to be insulated from
constitutional challenge. This, I am sure, would be one of the arguments
advanced by lawyers and judges who are opposed to the decriminalisation
of the practice. However, the stock arguments I have heard favouring
continued criminalisation of the practice are that homosexuality is a
horrible sin, an abomination in the face of God. Also, it is an
unnatural act and is most disgusting; hardly the grounds for the State’s
criminalisation of any form of behaviour.
But let us take the religious argument first. As I have stated on so
many occasions before, for those of us who accept the teachings of our
scriptural texts, homosexuality, like adultery, is a sin; and it shall
remain a sin into eternity. However, in the constitutionalist State’s
decision to criminalise any form of behaviour, the fact that that
behaviour is sinful cannot be the sole moral predicate for criminalising
it. For having regard to the fact that the criminal law regime in a
democratic society is the most coercive area of the law, then the State
has the political obligation to its citizens to advance compelling moral
justification for criminalising certain practices. Murder and rape
stand as paradigmatic examples of how the compelling moral justification
for the criminalisation of such acts would at once explain why our
society would be grossly unjust had we not legislated such crimes. And,
as for the unnatural and disgusting nature of homosexuality, nothing
more need be said, since that, in and of itself, establishes no moral
ground for the criminalisation of the practice.
However, I would hasten to add that the fact that the religious
argument must fail as the sole moral ground for the criminalisation of
homosexuality—as I would explain shortly—does not mean that it is
irrelevant. Quite to the contrary. For the Church, the Temple, and the
Mosque, as some of the most important institutions in civil society,
protected by the fundamental right of freedom of speech and of religion,
claim a central place in the Public Square. Their teachings must school
us to a more exacting temper of religious faith. They must be that
agency by which we would preserve those values that we hold most dear;
and by which we would allow the offices of our religious faiths to speak
transcendent truth to wordly power. But theirs remains one voice among
many in that communal discourse by which we hope to fashion a just
social order. The Church, the Temple, and the Mosque must therefore
continue to preach against the practice of homosexuality as long as they
continue to believe that this is contrary to sound religious
faith.
A Fresh Start: The WI Polity
Let us try starting over again. It has long been my firm belief that on
this vexing, emotional matter of the practice of homosexuality, we have
always missed the central interpretive issue: whether, in a democratic
society, such as ours, the State has the constitutional authority to
criminalise same-sex relations among consenting adults in private. For
us, the answer to the question must turn on a careful articulation of
the nature of the West Indian (Independence) Constitution and of the
polity that such a constitution informs. In this articulation, we must
locate a compelling theory of criminalisation.
It is submitted that the West Indian Constitution stands in the
tradition of written constitutionalism: an idea first forged in the
American founding over the past two centuries; the idea of a polity
constituted and regulated by a written fundamental law, structured on
the principle of the separation of powers, and entrenching a set of
fundamental rights and freedoms, enforceable by an independent judiciary
for the protection of the citizenry against arbitrary and capricious
government, and to ensure that the exercise of legitimate governmental
powers always remains within morally obligatory limits. In a word, these
fundamental rights and freedoms, as principles of political morality,
impose moral constraints upon the State and its various institutions and
offices as to the policies that may legitimately be adopted and how the
citizenry may be treated as free and equal persons. Hence the common
understanding that constitutional, democratic government is limited
government. Indeed, it is these rights and freedoms that give to
constitutional democracy its claim of moral distinction among other
forms of political rule.
But most importantly, these rights and freedoms articulated in Western
constitutional texts, including ours, are held equally by every citizen
of the State. They are otherwise referred to in the philosophical
literature as the basic human rights of the individual person,
constitutive of the ideal of human dignity and of the equality of
persons. Therefore, any limitations placed by the State on the exercise
of these rights and freedoms must themselves be morally justified.
Again, this is what distinguishes constitutional democracy from all
other forms of political rule, in that the very conception of democracy
that is entailed is one which places moral boundaries on the
majoritarian principle of democratic governance.
That is to say, while we readily recognise the majoritarian principle
as one of the defining principles of constitutional, democratic rule, we
are yet mindful of the fact that, for this form of governance to have
great normative value and any claim to moral distinction, there are
certain issues of principle which cannot simply be determined on the
grounds of whatever happens to be the desire or the preference of the
overwhelming majority of persons in the society. For if that were the
case, then minorities in a society would forever be at the mercy of the
majority. They would hold their fundamental rights and freedoms at the
sufferance of the majority.
Democracy and Criminalisation
As I have intimated at the very beginning of this piece, we need a
theory of criminalisation consequent on a more sophisticated
understanding of constitutional, democratic governance. I rather suspect
that we have eschewed any serious philosophic reflection on this
question of criminalisation because the regime of classic crimes we have
inherited from colonial days seems pretty self-evident to us. Moreover,
we have for nigh two hundred years been under the tutelage of the
judges of her majesty’s judicial committee, whose judicial opinions
hardly impress me as being informed by any deep philosophic
understanding of the law; something to be expected of all judges, in
particular, those of the highest court. Hence our need for a fresh
start. For if we are to make some sense of this deeply, troubling
emotional issue surrounding the criminalisation of same-sex relations
among consenting adults in private, then we need to start with a general
theory of criminalisation.
To repeat, in our written constitutional texts, we have committed
ourselves to live according to certain constitutional principles,
properly understood. These constitutional principles, which include
certain principles of political morality, at once empower the State to
act affirmatively and, at the same time, establish the morally
obligatory boundaries within which the central competences of the
State—the legislature, the executive, and the judiciary—may exercise
their legitimate governmental powers. Among these powers is that awesome
power of the legislature to make laws for the governance of the
society. But this power is always subject to the constitutional
constraints articulated in the Fundamental Law. Thus, the power to make
law, which entails the power to determine what forms of behaviour should
be criminalised, requires that the State offer compelling justification
for such legislation. Justification is of course required for all
legislation; however, for the criminal law, having regard to the
punishments that may be exacted for the commission of a crime, the
justification advanced in favour of such legislation must be morally
compelling.
What is of the utmost importance here is that although ordinary
legislative enactments are based on policy considerations, the criminal
law is especially demanding that any such legislation comports with the
very principles of political morality to which the people of a
democratic society have committed themselves. On this view, it can never
be the case, without more, that a particular piece of legislation is
eminently required because the overwhelming majority of citizens demand
it. Rather, where there is such strong support for a piece of
legislation, it must be the case that such support coincides with the
very constitutional principles that would justify the legislation as
being eminently just.
Put differently, this is the requirement of the most critical
constitutional principle of due process of law: that the State does not
criminalise any form of behaviour and impose severe forms of punishment
for the commission of crimes without compelling justification for doing
so. So, notwithstanding that much of our criminal law would have
preceded the enactment of our Independence Constitutions, these texts
nonetheless establish the conceptual contexts whereby we make sense of
our criminal law regime in the West Indies. Murder and rape are morally
justified as crimes because they constitute a gross violation of some of
the most basic human rights of the individual: the right to life and to
bodily integrity, among others. Similarly, the severe forms of
punishment imposed for these crimes are morally justified because they
comport with the degree of moral culpability entailed in the commission
of these crimes, and are therefore required to vindicate the moral worth
of the victims and to reaffirm the sovereignty of the State and our
collective commitment to live according to certain principles of
political morality, properly understood.
The Savings Clause
But the WI Constitutional Text suffers a peculiar anomaly. There is
that savings law clause which, as written and understood, insulates laws
which were in existence at the time of independence from constitutional
challenge. Indeed, there are those clauses that speak specifically to
the criminal law and to forms of punishment in existence at the time of
independence. For example, the mandatory death penalty law (and
associated penalties) is one that has most exercised the judicial mind
for the past several years. The Barbados Clause (Section 26 of the
Constitution) seems to cover all existing laws, so I will use it as an
example.
First, I wish to state that, from a certain standpoint, a savings law
clause, such as Section 26, does the obvious: it states in essence that
all existing laws which are not expressly abrogated by the Independence
Constitution are hereby saved. To the legal philosopher, this very
simple claim is of extraordinary importance because of the conceptual
transformation which inevitably ensues with political independence. For
us, it is the inevitable rupture and discontinuity of British
sovereignty over our territories and the fundamental conceptual
transformation of our Constitutional Texts, which are now formally
articulated in the language of human rights, common to all republican
constitutions of Western democracies, which would now include the
formally (unwritten) constitution of Britain itself. This principle of
‘discontinuity of law’ requires that we understand a savings law clause
as giving formal expression to the idea that all laws existing at
independence as being conceptually re-enacted by the Independence
Constitution, and must therefore be interpreted in accordance with that
Constitution. For, as the teachings of the late Prof Hans Kelsen and of
the late Prof HLA Hart have made it so painfully obvious: all laws now
derive their validity from the Independence Constitution.
But, sadly, our judges, those of the Privy Council and WI judges, miss
this critical point about the discontinuity of law, and instead assume
an unbroken continuity between the colonial constitution by which we
were governed and the Independence Constitution. Thus, in the famous
Ophelia Kingcase against the Attorney General of Barbados, all our
judges were preoccupied with questions about the Crown’s relationship
with its servants, and the powers that the Crown—a Crown which has yet
to be explained—has retained under the Barbados Constitution. In the
end, at the Privy Council, the case came to rest on the rather idiotic
premise that the crown retained the power, as per a 1948 statute, to
vary the emoluments of its servants at will.
In consequence, the most important philosophical question for
constitutional interpretation was never frontally addressed: How was the
Barbadian polity reconstituted and transformed by a written
Constitution which expressly entrenched a set of basic human rights of
the citizen? I submit that if this question had been diligently pursued,
not only would we have been tutored in a more sophisticated reading of
our (WI) constitutional law, but we would also have been led to a deeper
philosophic problem at the heart of the case: the problem of
distributive justice; a problem of the equitable distribution of
benefits and burdens among members of the society. At this level, we
would have seen how central the constitutional principle of due process
would have been to a just resolution of Mrs Ophelia King’s case. I
rather suspect that then Prime Minister Arthur had gleaned this in a
statement he had made some years later, pledging the restoration of the
salaries of civil servants.
But the reader may think that I have digressed too far afield. But I
have not really; the two cases are inextricably linked in the
hermeneutic reading that I am advancing for the WI Constitution.
Moreover, for Barbados and those countries that still retain a savings
law clause in their Constitutions, the reading of these Texts may be
skewed in deference to the clause. That is because the complete language
of the clause states that an existing law, such as that criminalising
same-sex relations among consenting adults, shall not be found to be
inconsistent with the fundamental rights provisions of the Constitution.
So we have now come full circle to the central question as to how the
West Indian Constitution ought to be read in respect of a challenge to
the constitutionality of the law criminalising same-sex relations among
consenting adults in private. The reader would note that I have not used
words like “gay rights” or “homosexual rights,” simply because such
terms have invariably led to the wrong questions being asked. For the
issue is not whether the State should recognise “gay rights,” given that
those persons who practise homosexuality do not have any rights
separate and apart from the rights that the rest of us have. The
fundamental rights and freedoms articulated in our constitutional texts
are held by all citizens equally. In a word, they are the rights of
equal citizenship.
It therefore bears repeating, over and over again, that these rights
and freedoms constrain the constitutionalist State as to the forms of
behaviour it may or may not criminalise, and the degree of punishment it
may justly inflict upon the citizen for the commission of a crime.
Above all else, the West Indian Constitutionis an instrument of justice,
and it must be interpreted to yield the integrity and coherence of its
meaning as an instrument of such constitutive purpose. Thus, if the
constitutionalist State is morally enjoined to treat its citizens as
equals, then whenever the State affects to treat some citizens
differently with respect to any benefit or burden, it must advance
compelling justification for doing so. This is absolutely the only way
in which the State can discharge its moral obligation to treat its
citizens with equal concern and respect.
On the view of the foregoing, then, the appropriate question before us
is whether the constitutionalist State has the authority to criminalise
homosexual intimacy among consenting adults in private. What compelling
justification, in other words, can the State advance for such action,
which, in the case of Barbados, may result in a criminal defendant being
imprisoned for life? Does the State have the constitutional authority
to criminalise heterosexual intimacy among consenting adults in private,
whether or not that behaviour is adulterous?
We have noted earlier in this piece that the stock reasons advanced for
the criminalisation of homosexuality are that it is a sin and an
abomination in the face of God; and, also, that it is an unnatural and a
disgusting practice. The more dominant reason is that homosexuality is
sinful.
In all my pronouncements on this subject, I have never questioned the
sinfulness of homosexuality; or of adultery, for that matter. It would
be silly for one to do so, since that is the teaching of virtually all
scriptural texts. Thus, for the many people who learn their morals from
their religious texts, homosexuality remains a sin forever. So would
murder and rape.
But the question remains whether our religious beliefs can be the sole
predicate for the criminalisation of any form of behaviour. In other
words, can the constitutionalist State claim justification for
criminalizing homosexuality on the sole premise that it is against God’s
law?
The answer to the question is no, for the simple reason that the right
to religious liberty, which the Constitution protects, is held by all
citizens equally; believers and non-believers alike. That is to say,
some citizens’ choice not to believe the Bible, for example, is not
something the law can regulate. Then there are those, as acts of
conscience, who do not believe in any deity. This, too, is embraced by
the right to freedom of conscience and religion.
So the State, in order to respect the principle of equal citizenship,
must advance reasons that all citizens can in principle accept,
irrespective of religious beliefs. In other words, if heterosexual
relations among consenting adults in private are defended on grounds of
privacy and of one’s moral right to make such critical choices as to
when and with whom to be intimate, then the State must advance
compelling reasons as to why homosexual relations among consenting
adults in private could not be defended on the very grounds of privacy
and of one’s moral right to make critical choices as to when and with
whom to be intimate.
This is where the case against the decriminalisation of homosexuality
fails. The State simply does not have any satisfactory argument in its
favour. And the State is barred from using the argument that the
overwhelming majority of West Indian people are against decriminalising
homosexuality. For, if it is the case that, as citizens, we hold our
fundamental rights as equals, then, as we have shown earlier, the State
cannot use the desire, or the overwhelming preference, of the majority
in the society, no matter how strong and enduring that desire or
preference may be, as the basis for denying to one group of citizens the
equal protection of their fundamental rights and freedoms.
Finally, we come to the savings law clause. This provision creates a
contradiction within the West Indian Constitution, which can be
interpreted to allow ordinary law to trump the fundamental rights
provisions of the Constitution. This has led to rather unjust decisions,
particularly in death penalty cases. However, the question remains,
whether in the face of the reluctance of West Indian Governments to
repeal the offending laws and remove the savings law clause from their
Constitutions, the Courts (including the CCJ) are nonetheless empowered
to act in fidelity to the Constitutions. The answer is a resounding,
“Yes”; and for the following reasons.
The principal judicial office of our Courts is to enforce our
democratic Constitutions. All our judges have taken an oath of fidelity
to our Constitutions. This is in the very nature of the judicial office.
But the West Indian Constitution, have noted, imposes certain moral
injunctions upon all officers of the State to respect the fundamental
rights and freedoms of the citizenry. Therefore, our judges have a moral
obligation to interpret our Constitutions in a manner that would make
them the best instruments of justice that they can possibly be. And this
obligation holds in the face of a savings law clause in the
Constitution.
So, in closing, I re-echo my agreement with Prime Minister Stuart, that
he should not repeal the law criminalising homosexuality on the
directive of the British or US government. Rather, he should repeal the
law because it is the just thing to do. Failing this, we await a
challenge to the constitutionality of that law in the courts across the
region.
Source: http://www.guardian.co.tt/lifestyle/sunday-january-1-2012/homosexuality-and-consitution