Thank you for
the opportunity to be part of this panel discussion considering the
implications of the upcoming Referendum on the 7 th June 2016 voting on
the four Constitutional Amendment Bills which passed Parliament with the
requisite three quarters majority in both chambers in April of this
year. If approved by a majority of Bahamians the amendments will enable
changes to our Constitution that will harmonize our laws with our
treaty obligations under the United Nations Convention on the
Elimination of Discrimination Against Women to which the Bahamas
subscribed in 1993.
The
first attempt to incorporate these Treaty obligations into our domestic
law occurred in February 2002 and were defeated. This is now , some
fourteen years later the second attempt at gender equality.
Briefly stated the four Bills provide :
1. That a child born outside of the Bahamas to a Bahamian Mother and a
non- Bahamian Father should have automatic citizenship at birth.
I
note firstly , that , this provision will not be retroactive which I
find curious since The Prime Minister said in Parliament that as a
matter of administrative policy persons caught in this category will be
processed routinely. So why not deal with it in the Bill and make it
retroactive.
What you may ask does this amendment mean to you in real or practical terms ?
Think on this illustration which is pregnant with a number of twists.
Bahamian Mother married to a non-Bahamian husband ( met in University
where they were both students ) and who is pregnant with their fourth
child. The other three children are born in the Bahamas and are Bahamian
citizens : see Article 6 of the current Constitution . The husband we
can assume is at least on a spousal permit.
The mother is having a
difficult pregnancy and needs to see a specialist in Miami . She is now
at seven and a half months and on the cusp of not being able to fly.
She flies to Miami with her husband to see the specialist on Bahamasair
as the carrier; and of course the return flight is booked on this
carrier as well.
She sees the specialist who tells her that the
birth may be premature and there could be issues. She is now nervous and
she gets to the airport to find out about the usual delays that
Bahamasair is world famous for. Panic sets in; and her husband drenched
in sweat buys two one way first class tickets on American to get home.
Those are the only seats available. They board the flight, the husband
trying to console his wife now overcome with anxiety , the cramps set
in ; and then the inevitable, the waterbag goes and she starts to scream
and we have an emergency.
Happily, American performs admirably
and there is a doctor on board and by the time LPIA is in sight mutual
felicitations and congratulations abound at the birth of a baby girl,
the fourth addition to the family. While the baby is an estimated
healthy 7 lbs girl it dawns on her mother that her child is a US
citizen because American is a US flagged aircraft and probably also a
foreign National ( see Article 14 of the Constitution), but definitely
not a Bahamian. Ladies and gentlemen she is now a hostage to Fred
Mitchell.
This child will never need a Visa to go to the United
States , will never need a Green Card , but in her family she will be a
victim of Immigation apartheid. Her siblings are Bahamians , she is not.
In order to travel as a child she will have to obtain, realistically , a
US passport. When they travel in future and return to the Bahamas she
and her father can queue in one immigration line, the rest of the family
in another. That cannot be right, can it?
2. The second Bill
allows a Bahamian woman who marries a non- Bahamian man to secure to him
the same access to citizenship that a Bahamian man has always enjoyed
under the Constitution in relation to a wife subject to the safeguards
against abuse provided for legislatively. I understand there is a
suggestion that this Bill is a license for unbridled immigration by
foreign men. In fact reject this Bill and further amend the Constitution
to disable Bahamian from conveying this right to non-Bahamian women is
the xenophobic imperative.
I do not understand this kind of
thinking. This is reactionary even by nineteenth century standards. As a
modern progressive democracy we should err, if at all, on the side of
enlarging rights not abridging them. At the end of the day we are not
talking about a significant number of persons. There aren’t a huge
number of men waiting, like barbarians at the gate, to defraud Bahamian
women just to get Bahamian citizenship. That is just xenophobia. Of all
of the Nations of world the Current UN statistics indicate less than two
dozen that discriminate against women this way and most of them are in
Sub-Saharan Africa and the Islamac world.
I noted with shock the
opinion of Harvey Tynes QC that Bahamians should not only reject this
Bill , but take away the Constitutional right of a Bahamian man to pass
this right to his non Bahamian wife. In my view this is a little
disingenuous given that Harvey’s wife would have acquired Bahamian
citizenship in order to be called to our local Bar being originally from
a Caribbean jurisdiction. She practices as an attorney. I hope Charles
Dickens will forgive my lament that this is not the best of Tynes and
in fact may be the very worst of Tynes! I cannot respect people who pay
lip service to their convictions!
3. The Third bill seeks to
correct an historical anomaly which has led to discrimination against
men in the Constitution. Unmarried men cannot convey citizenship to
their illegitimate children . This is an historical perversion in the
law’s development that treated illegitimacy as a sin and a legal nullity
so far as men were impacted. So children born this way were treated as
the “ natural” children of their mothers and thus inherited their status
.As far as men were concerned their illegitimate children were bastards
and they had no legal obligation towards them. This carried over into
the realm of Private International law and affected the ancient rules
relating to domicile. Provided there is proof of paternity this
amendment corrects this inequity.
4 .The fourth and perhaps most
contentious Bill is the fourth Bill which would add the word ‘sex’,
defined as male and female to Article 26 so that it would be
unconstitutional for Parliament to pass laws which discriminate on the
basis of sex and deny equal treatment under the law.
This
amendment is designed to ensure practical goals such as equality of
treatment in the work place , health care equal pay for equal work and
other instances of modern life.
It is a functional description of gender for equality purposes not an expose into sexual orientation.
Ladies and gentlemen this amendment has absolutely nothing to do with
same sex marriage. It is not intended as a gateway to same sex marriage
as it appears now to be the direction in the USA after a series of US
Supreme Court decisions .
This will not happen because Article 26
( 4 ) permits some forms of discrimination . One form of
discrimination encompasses restrictions in our matrimonial law. Section
21 ( c) of the Matrimonial Causes Act invalidates marriage other than
between a man and a woman . The subsection specifically saves this as a
permitted discrimination notwithstanding the Constitutional ban on
discrimination. The only way the law can be changed will be through
Parliamentary intervention not through judicial legislation which is a
pathological fear of the apostles of anger and intolerance one sees
aggressively reflected on social media.
Ladies and gentlemen I
could end there ,but it would be remiss of me if I did without a few
observations of regret that a laudable effort to remedy a social
injustice in the interests of moral fairness has become enmeshed in a
maelstrom of revenge ,misogyny , homophobia and xenophobia.
I am appalled that Religious leaders who should know better have confused Religious conviction with prejudice and bigotry.
I understand those persons who want to exact revenge particularly when
I hear the Deputy Prime Minister say he has nothing to apologize for, a
statement which in my respectful view could only have been made
without the benefit of sincerity.
I understand the almost
unquenchable thirst for revenge when you have a well known cleric
leading the charge for the Government then in Opposition in 2002 talking
nonsense about the failure to consult the cloth , but now saying in
2016 it was not a Religious issue after all. It is what the rest of us
always knew it was , a secular human rights issue that affects more
than one half of the Bahamian population . He wasn’t alone . There are
others in a slag heap of moral incontinence who took one view and now
take another. Many Bahamians if they are not angry are certainly
confused.
I understand it is emotionally wrenching for many Bahamians ,
Because if we say yes to Revenge,
Yes to Xenophobia ,
Yes to Homophobia,
Yes to Misogyny
We say No to many Bahamian Women
And No to many Bahamian children
Very difficult a kind of “quagmire “ to borrow a word from the lexicon of the Leader of the Opposition .
And where has been his leadership ? He tells us we must vote our
conscience. What in God’s name does that mean for someone in a position
of leadership who claims to have read and thoroughly understood the
Bills and voted for their passage in Parliament ? He could have voted no
, but he voted yes !
There is a right and a wrong side to history!
On fundamental human rights issues like this the test of leadership requires moral certainty not moral ambivalence !
Where would humanity be , if Abraham Lincoln had simply told Congress
in the United States in 1864 to vote their conscience on the thirteenth
amendment that abolished slavery in the USA rather than work
relentlessly to ensure its passage .
If Martin Luther King jr and
John F Kennedy and Bobby Kennedy had not sacrificed ultimately with
their lives in aid of the Civil Rights Movement in the 1960s in the US.
If Nelson Mandela had not given up 27 years of his life in the 1960s
onwards and suffered tremendous deprivation in the fight against
Apartheid in South Africa.
In each of the cases above the
persons mentioned were in no doubt as to the course which history
demanded of them and worked assiduously to achieve their goals . Are we
not , all of us , all of humanity , better off for their sacrifice ?
In each case I cite above all of these men were men of courage who
stood up for justice , for fundamental human rights , for fairness ,
for freedom , for social equality . In short they were not moral cowards
!
So where is Minnis now in all of this ? It seems to me he is
running for political cover . That is the message of the media. He
appears hell bent on following the path blazed for him by another Leader
of the Opposition in 2002. As the Guardian editorial put it so
succinctly today , real Leaders take a position , they stand for
something !
Minnis, I am pleased to say, is an aberration from
the perspective of the FNM which has always been on the cutting edge of
women’s rights beginning with the Constitutional Conference in 1972. The
source of my knowledge which I verily believe to be correct and true is
Sir Arthur Foulkes one of the framers of our Constitution. The FNM
attempted to deal with the issue of gender equality at the time but were
outvoted by the The British Government and the Pindling Government on
the final draft of the document.
The Constitution is our ultimate
contract of association with each other . While it will require
modification from time to time to ensure it adapts to changing social
mores, these changes must be made carefully , always with a view to
doing the right thing as Martin Luther King jr once so poignantly
captured it ,
“ The Arc of the Moral Universe is long , but it bends
towards justice “ , or , as his namesake before him , Martin Luther ,
put it in terms trenchantly,
"The time is always right to do that which is right .”
The ultimate litmus test for evolution must be fairness and a more just society.
So I urge you to put aside emotion , fear , prejudice and anger and
vote yes, remembering always that to neglect half of our great country
is to deny the whole!
Our women matter, our children matter! We
cannot be making arid distinctions as to which child gets a passport and
which child does not!
I cannot envisage a more important fundamental Rights issue than one which captures more than half of all Bahamians!
We must not be morally incontinent which Aristotle tells us is a
failure to follow our better instincts remembering always the challenge
of Abraham Lincoln on the seminal issues of our lives that we be guided
by our better angels !
Thank you for your kind attention.