THIS WEEK IN THE BAHAMAS (30 MAY – 3 JUNE 2016)
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THIS WEEK IN THE BAHAMAS (30 MAY – 3 JUNE 2016)
Elcott Coleby
Sen. Gibson: Only referendum can ensure “freedom from discrimination”
Well former President of the Bahamas Court of Appeal Dame Joan Sawyer was in the media this week suggesting again that the upcoming referendum is a waste of time and that its objectives could be fixed legislatively. On Wednesday the Office of the Attorney General responded, calling the suggestion incorrect.
“There has been a suggestion that the Constitutional Referendum is not necessary, and that ordinary legislation is sufficient to address current inequities in our country between men and women with respect to citizenship and the right not to be discriminated against. That suggestion is incorrect.”
Pointing out that the constitution supersedes any law, the OAG indicated that the discriminatory constitutional provisions that disadvantage women are entrenched in law and can only be changed via a constitutional referendum.
“The Constitution is the supreme law of the land. It takes precedence over any other law. The provisions which treat men and women differently with respect to citizenship rights and freedom from discrimination are entrenched provisions in our Constitution. They can only be changed by a Constitutional Referendum.”
“If we want our sons and daughters to be guaranteed equal rights under the law with respect to citizenship and the right not to be discriminated against, those rights must be written into the Constitution and entrenched at the highest levels” argued the OAG. “Ordinary legislation can be passed by Parliament, and it can also be changed, as it often is, by a simple majority in Parliament. Ordinary legislation cannot offer the same guarantees as entrenched constitutional provisions.”
McWeeney: A ‘NO’ vote on bill #4 could make same-sex marriage easier
This argument on the powers of protection against discrimination based on sex contained in Article 15 of the Bahamas Constitution has been made before and in a letter penned to Pastor Dave Burrows of Bahamas Faith Ministries International earlier this week, chairman of the Constitutional Commission, Sean McWeeney QC, laid out the argument once again.
Mr. McWeeney pointed out that multiple rulings by the Judicial Committee of the Privy Council, namely Campbell-Rodriques v the Att. Gen. in 2007 and Newbold v the Commissioner of Police in 2014 as proof that Article 15 does not, in law, protect a person against discrimination based on sex.
He also pointed out that ‘sex’ remains undefined in the current Bahamas Constitution and its insertion and definition in Article 26 makes it difficult for any judge to interpret ‘sex’ as ‘sexual orientation’ if bill #4 passes. If bill #4 fails, then the Constitution remains as is and ‘sex’ can be interpreted as ‘sexual orientation’ by a court, therefore opening the door to same-sex marriage. He cautioned those in the VOTE NO campaign that voting NO on bill #4 can have the unintended consequences of creating what the NO campaign claim they are seeking to prevent, same-sex marriage, so they must be careful what they wish for.
A YES vote on bill #4 closes this door as it defines ‘sex’ as simply being male or female. It also prevents any future Parliament from enacting laws that are inherently discriminatory against persons based on being male or female.
Mr. McWeeney made a third point concerning that ancient 1879 Matrimonial Causes Act (brought forth by Article 30 of the Constitution) that permits discrimination as it relates to marriage law in Article 26 (4) (c). The permissibility however only applies specifically to “race, place of origin, political opinions, colour (or) creed” but not ‘sex’ at this time. By inserting ‘sex’ in Article 26 along with the definition, discrimination in marriage law based on ‘sex’ also becomes constitutionally permissible if the YES vote succeeds in bill #4; Article 26 saves the Matrimonial Causes Act.
Apparently, Bishop Neil Ellis, Bishop Patrick Pinder, Bishop Franklyn and Bishop Laish Boyd get it. Unfortunately, Bishop Walter Hanchell, Rev. Lyle Bethel, Rev. Cedric Moss and the Rev. Mario Moxey still do not get it therefore the church is still somewhat divided on this issue. The national education campaign and debate continue. READ MORE…