Doing the Right Thing: In Response to Dame Joan Sawyer's Comments
By Alicia Wallace
Jun 6, 2016 - 7:45:39 PM
In a 17-minute address at the Bahamas Bar Association, Dame Joan Sawyer, DBE, PC advocated for votes against the constitutional amendment bills for which a referendum will be held on June 7, 2016.
While disappointing, many of her comments were hardly relevant to the impending exercise, thus it would be counterproductive to raise or challenge them at this time. The focus is, as it should be, on the need for a referendum to address the issue of inequality in the constitution, specifically regarding citizenship.
Early in her contribution, Dame Sawyer complained of the questions, as posed in 2002, being “bound up in legalese” which would have resulted in her voting no. This way of thinking is both common and unfortunate. Sixty years ago, voting would not have been an option for many of us who are now eligible to vote. The suggestion that imperfect knowledge or lack of understanding should be met with such widespread indifference and refusal to exercise civic responsibility is regrettable.
Many of us, Dame Sawyer included, have access to the internet, libraries, traditional media, and legal experts who can facilitate our acquisition of the requisite information and interpretations of legal language. Ignorance is not a sufficient reason for voting no when all available resources have not been exhausted. This position - coming from a legal professional - is cause for concern, especially since there are people in this country with far less access and time to facilitate an intentional quest for a deeper understanding of the bills.
On legislation and the constitution
Dame Sawyer gave a review of the gambling referendum and related clauses in the constitution. She read 26(4)(e) and (c), and offered commentary on the exemptions listed therein. These are the sections that give Parliament permission to discriminate on the basis of race, place of origin, political opinion, color, and creed in legislation related to adoption, marriage, divorce, burial, devolution of property, and gaming.
“Those are matters of choices people make, and the constitution forbids the government from trying to ram things home to people in their personal life.” She went on to say that the government is “not bound to legislate the way I want them to legislate, or you want them to legislate.”
This, in fact, is the issue.
The government can legislate as it sees fit, whenever it sees fit. It is not required to consult with the people. The government can enact new legislation and make amendments without our input, but the constitution - supreme law - requires our input. This exercise puts the power in our hands, enabling us to determine what we want for The Bahamas. This is the opportunity we ask for in contributions to radio talk shows, letters to editors of newspapers, protests, and petitions, and are frequently denied. Now that we are given the opportunity to fully participate in democracy, many choose to shy away, either in fear or in protest.
It is important to make this clear: The constitution is supreme law, and can only be changed at the will of the people. Article 2 of the constitution says “if any other law is inconsistent with this Constitution, this Constitution, shall prevail and the other law shall, to the extent of the inconsistency, be void.”
On civic participation
The government is in control of legislation, but under the limitations of the constitution. Why then, would we choose not to take the proffered pen and make our intentional mark on the constitution - our supreme law - that governs the government to which we are often unseen and unheard? Why would we shirk our duty as the electorate and abandon our privilege as the people of a democratic country?
In addition to the assertion that the rights of Bahamian men should be enshrined in the constitution while the rights of Bahamian women can be sufficiently addressed (and unaddressed without consultation) in legislation - an obvious inequality - this refusal to vote says, “We don’t want to participate in law-making, and prefer for the government to enact legislation - without our input - that can later be amended without our input.” This sets a dangerous precedent and is in contravention with what we, so often, claim to want.
Dame Sawyer mentioned the changes to inheritance law, referencing Article 26(4)(c) of the constitution where devolution of property is listed, and made the point that no referendum was held. In the same way, she referenced changes to the marriage act in 1983 without a referendum. She used these two examples to raise doubt about the need for a referendum now, on the four constitutional amendment bills on citizenship and anti-discrimination. The difference, of course, is that the examples she raised are legislation, not embedded in the constitution. The subsections she referenced are what give the government permission to act without referenda, drafting, amending, and passing bills in the House and Senate only. They are incomparable to the issue of today where we are looking specifically at Articles 8, 10, 14, and 26 which cannot be amended without this final step - the majority vote of the electorate.
On constitutional reform
In her argument, Dame Sawyer says, “If Parliament has the plenitude of power under Article 13… to give citizenship to whomever it wishes, why do we need to trouble the constitution?”
The issue of the constitution versus legislation already addressed, it is important to scrutinize the idea presented here. First, “whomever it wishes” is a telling phrase. In her own example of the Darcy O’Ryan case, Dame Sawyer points to the favoritism and selective behavior of governments, and how legislation is often not enough. Because his was a constitutional right, he won his case in the Court of Appeal and the Privy Council. Even with the constitutional right, O’Ryan faced difficulty because the government blocked his access to the citizenship. This is not support for legislation over the constitution, but evidences the importance of enshrining citizenship rights in the constitution to give Bahamian women equal opportunity to Bahamian men in conferring citizenship and to challenge unfounded denial of this right. The delayed resolution of O’Ryan’s case is not an indication of weakness in the constitution, but the need to hold governments to account, understand our rights and freedoms, and advocate for the recognition of the same.
Secondly, the phrase “trouble the constitution” is problematic, and similar words and phrases like “tamper” have been used to describe constitutional amendments. The constitution itself, in Article 54, states the process by which it may be amended. This clearly indicates that the constitution is not a static document. Many regard it as a holy text that is to remain untouched, failing to acknowledge that our laws are meant to change and grow with society.
Our constitution, untouched for over forty years, has put Bahamian women at a disadvantage, specifically where citizenship is concerned. This is a wrong that need not continue. As Dame Sawyer said in her presentation, if there is a problem - and there is - the honest and honorable thing to do is to correct it. “Do it right… Fairness, in itself, requires you to do it right.”
On problem-solving with the law
As Dame Sawyer put it, “People solve problems.” As a people, it is up to us to cast our votes on Tuesday, June 7, 2016 to solve the problem of inequality in citizenship rights and anti-discrimination. The law is a tool for solving problems. If it wasn’t, Dame Sawyer and many others would have had a different career. We are now in a position to shape the law we rely on to, not only solve problems, but to access the rights and freedoms we deserve as human beings.
Whether or not the bills are “worth the paper they are printed on” is for us to decide, as a people. They have no value in and of themselves. They rely on us to be passed and to work for us and generations to come. Our tax dollars have been spent to include us in the process of constitutional reform, and whether or not we agree with the decision, the four questions being put to us have been set.
May we see the value in this opportunity, celebrate the democratic right we can exercise, and know that letting our voices be heard can never be a “waste of money, time, and energy.” We can both acknowledge that there are other issues demanding our attention and this process has not been smooth or pleasant and participate in the constitutional reform process that will impact us beyond the time we spend learning, debating, and queuing to cast the ballots we are given because people, like us, fought to give us the opportunity, the voice, and the vote.
Wallace is a Bahamian writer, blogger, and social and political commentator. She
holds a Bachelor of Commerce degree from St. Mary's University,
Halifax, NS. She is a women's rights activist, passionate about public
education, community engagement, and the empowerment of women and girls.
Alicia is the Director of Hollaback! Bahamas- part of a global movement to end street harassment - and Co-founder of the Coalition to End Gender-based Violence & Discrimination. She serves
as the Youth Ambassador for The Bahamas to End Sexual Violence, and is one of 60 recipients of the Queen's Young Leaders Award in 2015. Alicia lives in Nassau, Bahamas. Connect with her on Facebook.
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