Thursday, May 12, 2016

Speech on the Four Referendum Bills Delivered by Former Bahamas Attorney General and Chief Justice on 10 MAY 2016

SPEECH BY SIR MICHAEL BARNETT TO THE ROTARY CLUB ON TUESDAY, 10TH 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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