The Tribune

EDITOR, The Tribune.

Re: Constitution Bill No. 4

By your medium, I wish to share my personal views on Bill No. 4, that is one of the Bills to be voted upon in the upcoming referendum. 

I feel compelled to make this intervention at this time as I am concerned that so-called intelligent/educated individuals are making unfounded and unjustified commentary on the effect of the proposed Bill No. 4.

In summary, Bill No. 4, proposes to insert the word “sex” in Articles 26(3) and 26(5) to prohibit discrimination against a person based on his or her sex, namely being male or female. The Bill also inserts a new paragraph (11) to define sex to mean male or female.  

Article 26(1) provides...

“Subject to the provision 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.”  

It must be noted and clearly understood that the requirement that no law shall make any provision which is discriminatory either of itself or in its effect is subject to Paragraphs (4), (5), and (9) of that Article. 

For the purposes of this discussion, we need only concern ourselves with Paragraph (4) and (5).

Paragraph (4) permits the discrimination in various areas such as taxes, entry into The Bahamas, employment of persons who are not Bahamians, and gambling, etc, including marriage.

Paragraph (4) provides inter alia Paragraph (1) of this Article shall not apply to any law so far as that law makes provision with respect to marriage.

This provision allows Parliament to discriminate with respect to marriage. Parliament has in fact made a law that marriage other than a marriage between a male and female is void (see Section 21 (1)(c) Matrimonial Causes Act).

In fact, Section 69(2) of the latter Act would prevent the recognition of a same sex marriage, even if it was lawfully performed and recognised in a jurisdiction outside The Bahamas.

Accordingly, under our existing law, a same sex marriage in The Bahamas is void. 

The proposed amendment is intended to prohibit discrimination based on one’s sex, whether you are male or female.  

The amendment, if approved, in the forthcoming referendum would cause Articles 26(3) and 26(5) to read as follows:

“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, creed or sex whereby persons of one such descriptions 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 descriptions.” 

And “Nothing contained in any law shall be held to be inconsistent with or in contravention of paragraph (1) of this Article to the extent that it makes provision with respect to standards or qualifications (not being a standard or qualification specifically relating to race, place of origin, political opinions, colour, creed or sex) in order to be eligible for service as a public officer or as a member of a disciplined force or for the service of a local government  authority or a body corporate established by law for public purpose.”

Without the insertion of “sex” in Paragraph 5, as an example, our Police and Defence Forces could have discriminated against the recruitment and inclusion of women in those disciplinary forces and there would not have been any constitutional right to challenge the exclusion of females from those forces.

Happily, these Forces for many years have embraced the inclusion of women into their ranks without the need of the proposed amendment. The Amendment in my view is putting it beyond doubt and as a constitutional protection that no law or public authority can discriminate against a person because of his or her sex, namely, being a male or a female.  

There is nothing in the proposed Bill No. 4 that can make it a springboard for the legitimisation of same sex marriage in my opinion. Those that espouse that view, in my respectful opinion, either do not understand the intent of the Bill or its substance or are intentionally misleading the public. Those who advocate that Bill No. 4 will lead to the legitimisation of same sex marriage should explain to the Bahamian public how that would occur?

LESTER J

MORTIMER Jr, QC

Nassau,

April 28, 2016.