From:TheBahamasWeekly.com
Chief Justice Barnett updates Rotary on Gender Equality Bills
May 12, 2016 - 12:30:17 PM
Nassau, Bahamas - The following is a speech by Chief Justice Sir Michael Barnett to the Rotary Club Of East Nassau on the Gender Equality Bills currently before the electorate, delivered on 10th of May 2016:
Parliament has now passed with the requisite three fourths majority
four Bills which seek to amend the Constitution of The Bahamas.
Three
of the Bills seek to achieve the equal treatment of both men and women
in the acquisition of citizenship by their children and their spouses.
The fourth Bill seeks to amend Article 26 by including the word “sex” in
Article 26(3) which defines the expression “discriminatory” in the
freedom from discrimination provision contained in the Constitution.
This
movement toward gender equality has been on-going for many years. In
1979, the United Nations General Assembly adopted Convention on the
Elimination of All Forms of Discrimination Against Women, commonly
called “CEDAW”. It became an international treaty in 1981. Although
CEDAW was an international treaty since 1981, it was in 1993, that The
Bahamas acceded to the Convention. In the Preamble to the Convention, it
is noted that “State Parties to the International Covenants on Human
Rights have an obligation to ensure the equal rights of men and women to
enjoy all economic, social, cultural, civil and political rights”.. All
Parties to the Convention, including The Bahamas, covenanted “to adopt
the measures required for the elimination of such discrimination in all
its forms and manifestations”. Article 9 of the Convention specifically
provides that “State Parties shall grant women equal rights with men
with respect to the nationality of their children”. In 2002, the FNM
Government sought to amend the Constitution to give effect to The
Bahamas’ obligations under the Convention and with the support of the
PLP Opposition, caused Parliament to pass similar legislation as
presently proposed, seeking to achieve gender equality.
We
all recall that that process failed (not because of the merits of the
proposed changes) but because the Opposition changed its position and
urged the electorate to vote “no” in the required Referendum. In 2003,
when the PLP won the Government, a new Constitutional Commission was
appointed to revisit the issue of amending the constitution to achieve
inter alia the objectives of the Convention. It was my privilege to
serve as a Deputy Chairman of that Commission. The Chairmen of that
Constitutional Commission was The Honourable Paul Adderley, a former
Attorney General, and Mr. Harvey Tynes Q.C. In 2006, that Commission
again recommended that the Constitution be amended to achieve the
objectives of the Convention to which we had agreed.
The
recommendations of that Commission were not acted upon at that time. In
2012, a new Constitutional Commission was again appointed, this time
under the Chairmanship of Mr. Sean McWeeney, Q.C. also a former Attorney
General of The Bahamas. In 2013 that Commission also recommended that
the constitution be amended to achieve the same objectives as was
proposed back in 2002. In March of this year the Constitutional Bills,
were passed by Parliament, again with the bipartisan support of the
majority of both the PLP and the FNM members of House of Assembly as
well as the Senate. A new referendum is scheduled to be held on
7th June, 2016
for the electorate to approve the Bills to amend the constitution. I
set out this historical perspective to make the point that the merits of
the proposed Bills and the need to amend the Constitution were never
seriously in dispute. The inequities in the present constitution were
obvious to both the PLP and the FNM leadership of the country. I now
proposed to deal with each of the Bills.
The
first Bill is not too controversial. It seeks to amend the Constitution
to allow a Bahamian woman who is married to a non Bahamian man to pass
on her Bahamian citizenship to her child born outside The Bahamas. Under
the present law, a child born to a Bahamian man who is married to a
foreign woman is a Bahamian citizen regardless of where the child is
born. However, a child born to a Bahamian woman who is married to a non-
Bahamian is not a citizen if the child is born outside The Bahamas.
This is clearly discriminatory. This is not an academic problem that is
being sought to be corrected. I cite to you an example. A Bahamian woman
meets and marries a Jamaican doctor doing his internship at the
Princess Margaret Hospital. They have a child born at PMH. That child
immediately acquires Bahamian citizenship.
Two years later
they relocate to the United States for her Jamaican husband to do his
specialty training in surgery . They have three more children whilst in
the USA.
Those three children born in the USA
are not Bahamians although their eldest sister born in Nassau is a
Bahamian. The mother now wants to come back home after her husband has
completed his studies. She is travelling with her four children. She and
her eldest daughter have a Bahamian passport. The three younger ones do
not. The airline company in New York refuses to allow the last three
children to travel to Nassau on a one way ticket. She is obliged to buy
round trip tickets for them, although she and the eldest child can
travel back home on a one way ticket.
This
anomaly is agreed by all to be unacceptable and Bill Number 1 seeks to
redress that unequal treatment between married Bahamian men and married
Bahamian women. It will provide that a child born to a Bahamian woman
will be a Bahamian citizen whether the child is born in or outside The
Bahamas. Bill Number 2 is more controversial. Presently, a foreign woman
married to Bahamian man has a constitutional right to Bahamian
citizenship upon application after marriage. No such similar
constitutional right is given to foreign man who is married to a
Bahamian woman. This anomaly is not peculiar to The Bahamas. It is found
in the constitutions of other countries as well. But the proposed
amendment giving equal treatment to the foreign spouses of both Bahamian
men and women, will also not be novel.
The
equal treatment of foreign spouses of nationals can be found in the
constitutions of Guyana, Jamaica and Belize. This proposed amendment
goes to the very root of the issue whether or not we really believe that
men and women should be treated equally. Whilst I see some force in the
argument that marriage should not be a basis for any person acquiring
citizenship (wives or husbands) as is in the case of Trinidad and Tobago
(where it does not) equal treatment of men and women does not, I
suggest, permit the discrimination that allows foreign wives of Bahamian
men to acquire citizenship based upon marriage but foreign husbands of
Bahamian women should not. The issue before the Commission and thus
before Parliament was whether the Constitution should be amended to take
away that right presently afforded to the foreign wives of Bahamian men
or grant the same right to the foreign husbands of Bahamian women as
well. The status quo was felt to be unacceptable in a modern society, if
we truly believed in gender equality.
The
decision to give the foreign husbands of Bahamian women the same right
as the Constitution gave to the foreign wives of Bahamian men as opposed
to taking away the right presently given to the foreign wives of
Bahamian men is in my opinion a laudable one. It promotes stable family
life and gives both parents a real stake in the country they choose to
call home and raise a family. It must be noted that the acquisition of
citizenship by a marriage is not automatic. The spouse must make an
application and the amendment
contains provisions to guard against
marriages of conveniences and to protect the community against abuse
where the spouse is unsuitable on the grounds of national security as
where he or she has a serious criminal record. As I said, it requires an
application to be made by the foreign spouse and the Government has the
ability to take a reasonable time to consider the application in order
to satisfy itself that it is a bona fide marriage and not one entered
into for the purpose of acquiring Bahamian citizenship. Bill Number 3
seeks to achieve gender equality by giving the mother and father of
children born out of wedlock equal right or ability to pass on their
citizenship to their child. Under the present law, only the Bahamian
mother of a child born out of wedlock is able to pass on her citizenship
to her child. The Bahamian father of a child born out of wedlock cannot
pass on his citizenship to his child. I give you an example, Marie is a
19 year woman. She was born in The Bahamas and went to school in The
Bahamas. Both of her parents are Haitian nationals. Both parents were
here legally. Both had work permits. Marie is not a Bahamian. Upon
graduating from high school last year, Marie got a job as a cashier at
the local supermarket. She really needs a work permit but that
infraction of the law is overlooked. Marie has applied for citizenship
but her application is one of the thousands that are still pending.
Marie unfortunately got pregnant for her boyfriend, who she was going
out with from high school. She had a girl. Her boyfriend is a true blue
Bahamian. He is 21 years old. Everybody knows that he is the baby daddy
and he is proud of his daughter. Alas, the young baby girl is not a
Bahamian because her parents were not married. If the mother was a
Bahamian and the father was not, the child would have been a Bahamian at
birth even though the parents were not married; but the present
constitutional provision does not permit a child born out of wedlock of
Bahamian father to acquire the citizenship of his father upon birth. The
proposed Bill Number 3 seeks to correct that unequal treatment. Under
that Bill, the Bahamian father of child born out of wedlock is able to
pass on his citizenship to his child. Or put another way a child born
out of wedlock of a Bahamian father will be as much a Bahamian citizen
as a child born out of wedlock of a Bahamian mother. For those concerned
about proof of paternity, proof that a man is the father can only be
established by using DNA evidence. Again, the objective is gender
equality.
Finally I come to Bill No 4. I have
distributed the relevant paragraphs to Article 26. Article 26 of the
Constitution presently provides: 26.
(1)
Subject to the provisions of paragraphs (4), (5) and (9) of this
Article, no law shall make any provision which is discriminatory either
of itself or in its effect.
(2) Subject to the
provisions of paragraphs (6), (9) and (10) of this Article, no person
shall be treated in a discriminatory manner by any person acting by
virtue of any written law or in the performance of the functions of any
public office or any public authority.
(3) In
this Article, the expression “discriminatory” means affording different
treatment to different persons attributable wholly or mainly to their
respective descriptions by race, place of origin, political opinions,
colour or creed whereby persons of one such description are subjected to
disabilities or restrictions to which persons of another such
description are not made subject or are accorded privileges or
advantages which are not accorded to persons of another such
description.
(4) Paragraph (1) of this Article shall not apply to any law so far as that law makes provision —
(a)
for the appropriation of revenues or other funds of The Bahamas or for
the imposition of taxation(including the levying of fees for the grant
of licences);
or (b) with respect to the entry
into or exclusion from, or the employment, engaging in any business or
profession, movement or residence within, The Bahamas of persons who are
not citizens of The Bahamas;
or (c) with
respect to adoption, marriage, divorce, burial, devolution of property
on death or other matters of personal law;[ MY EMPHASIS]
or
(d) whereby persons of any such description as is mentioned in
paragraph (3) of this Article may be subjected to any disability or
restriction or may be accorded any privilege or advantage which, having
regard to its nature and to special circumstances pertaining to those
persons or to persons of any other such description, is reasonably
justifiable in a democratic society;
or (e)
for authorising the granting of licences or certificates permitting the
conduct of a lottery, the keeping of a gaming house or the carrying on
of gambling in any of its forms subject to conditions which impose upon
persons who are citizens of The Bahamas disabilities or restrictions to
which other persons are not made subject.
The
proposed amendment simply seeks to add the word “sex’ among the grounds
for which Parliament is unable to pass laws which are discriminatory
either of itself or it effect. May I begin by stating that such an anti
discriminatory provision which includes the words “sex” will not be
novel or peculiar to The Bahamas. A similar provision as is Article 26
including the word “sex” can be found in the constitutions of Belize,
Antigua and Barbuda; Saint Lucia, Grenada, the Cayman Islands as well as
in the recent constitution of the Turks and Caicos Islands . It is
important to note that the word ‘sex’ does not mean ‘sexual
orientation”. It simply means gender; male or female. I do not support
the position advanced by others that the proposed amendment will now
prevent Parliament from enacting laws prohibiting same sex marriage or
will make unconstitutional the existing law which makes same sex
marriage void. It is important to note that the laws of The Bahamas
presently prohibit same sex marriages.
Section
21 of the Matrimonial Causes Act specifically provides: “A marriage
shall be void on any of the following grounds: (c) that the parties are
not respectively male and female” That is the law of The Bahamas today
and will remain the law of The Bahamas if the Referendum approves the
Bill. Nothing in the proposed Bill changes that fact.
That
provision in our law is protected from challenge under Article 26. You
will recall that the provision in Article 26 (3) expressly provides that
the anti discriminatory provision in Article 26(1) does not apply to
any law “with respect to adoption, marriage, divorce, burial devolution
of property on death or other matters of personal law”. Those laws will
remain unaffected by the proposed amendment. In short, it is my view
that even with the proposed amendment to include the word “sex” in
Article 26, the Constitution will continue to permit Parliament to enact
any law which is discriminatory either of itself or in its effect with
regard to adoption, marriage divorce, burial etc. The concern with
respect to same sex marriage is in my respectful view not realistic and
nothing which I said in my address to the National Bar Association in
2013 should be construed as saying otherwise.
This
is not to say that the issue will not come before the courts for
consideration, but I am confident that the courts will give effect to
the provision of Article 26 (4)(c) and insulate laws which prohibit same
–sex marriage from constitutional challenge under the
anti-discriminatory provision. In this regard, I respectfully share the
view of Lord Michael Beloff Q.C., one of the most distinguished lawyers
at the English Bar, when he said “ I do not consider that the proposed
amendment to Article 26 raises the prospect of a constitutional right to
same-sex marriage” You may well ask what is the purpose of the proposed
amendment to include “sex” in the expression “discriminatory”? Why
do it? What the amendment does do is prohibit Parliament passing a law
which fixes the minimum wage for men to be different than the minimum
wage for women; or enacting a law which require or permits women to
retire from employment, including the public service, at an age
different from men or to receive national insurance or pension benefits
at different ages. It will prohibit Parliament from passing a law which
imposes a different age for drinking on men than it does for women or
which requires a women to attend school for a shorter period than it
does men. In the first quarter of the 21st century, these may seem
rather obvious to you but may I remind you that only in the last half of
the 20th century was the law changed to permit women to vote and serve
on juries.
Moreover, the Pensions Act used to
permit women in the Public Service to retire at an earlier age than men,
a form of discrimination against men. In a nut shell, these are the
proposed amendments to the Constitution. They are designed to give equal
treatment to men and women on the issue of citizenship and restrict
(although not wholly eliminate) the ability of Parliament to pass laws
which discriminate between persons on the ground of their sex. Some have
suggested that the changes proposed with respect to citizenship can be
effected by ordinary legislation and an amendment to the Bahamas
Nationality Act would be sufficient. I do not agree. The provisions for
the grant of citizenship which are sought to be corrected are contained
in the Constitution itself. It is the constitutional provision that is
being corrected and this in my opinion can only be done by amending the
Constitution. Ladies and gentlemen, this is not simply an academic
exercise. Many persons throughout the length and breadth of The Bahamas
right now are adversely affected by the present law. Persons will
continue to be adversely affected unless the Constitution is changed.
To
some in our society, gender equality may be an anathema. To me, it is
not. Others may wish to vote “no” simply to express their
dissatisfaction with the Government. That would be unfortunate. As one
who supported and actively campaigned for these amendments as far back
as 2002, I am not surprised by the human reaction to vote “no” as a
payback against the PLP Government for the stance it took in 2002. I
also understand the reluctance of those who voted “no” in 2002 to now
vote “yes”. They are now being asked to vote “yes” to proposals they
were advised to vote “no” a few years ago. The public record will
reflect that some in the PLP leadership advised the public in 2002 to
vote “no” because: “Mr Ingraham does not need to amend the
constitution…… give rights to the children of Bahamian married women who
are born overseas”. Bill Number One (1) does exactly what they were
told in 2002 was not necessary to do. It may well be that some contrite
admission that it was a mistake to advise the electorate to vote “no” 14
years ago would go a long way to in persuading a reluctant electorate
to vote now “yes” in June. Decisions on matters of public policy should
not be made out of prejudice, anger, bitterness, revenge or spite.
They
must be made responsibly having regard to the best interest of our
country and in particular the generations who succeed us. We cannot
abdicate our duty as citizens to responsibly participate in these policy
decisions. The proposed Bills must be considered on their merits. They
must be considered objectively. I am afraid unless these amendments are
made during this exercise, it is not likely that they will be made for a
long time. These inequalities will remain as part of the laws of The
Bahamas. This, I suggest, would be a travesty.
I
supported the proposed changes in 2002. I recommended the proposed
changes in 2006 as well as in 2013 when, I appeared before the present
Constitutional Commission. Without reservation, I continue to support
the proposed changes and I will vote “Yes” in the upcoming Referendum to
all four (4) Bills. Thank you for your kind attention!
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