EDITOR, The Tribune
As A member of the legal fraternity, I watched the video of Dame Joan’s speech at the Bahamas Bar Association’s forum held on Thursday, May 26, in complete and utter amazement; amazement which quickly turned to sadness and disbelief.
That notwithstanding, I feel constrained once again to comment on the inaccurate and confusing statements of the law made by Dame Joan on that occasion, and to set the record straight on the upcoming referendum and amendment of the Constitution. I simply cannot sit by and allow this diet of ignorance to be fed to the public once again.
By her ill-prepared and often intemperate presentation at the forum, Dame Joan has once again done a grave disservice to her legacy, and to the people of the Bahamas who understandably look to her for erudition on such issues of public importance.
It is disingenuous of Dame Joan to equate the gambling referendum, which for all intents and purposes was an opinion poll, with the need for, and binding nature of, the present constitutional referendum. It is also legally and factually incorrect for Dame Joan to intimate that like the gambling issue, a referendum is not required for the amendment of articles 8, 9,10, 14 and 26. To insinuate that a constitutional right to citizenship can be created by ordinary legislation is preposterous and legally unsustainable.
It is trite that any law passed by Parliament must be consistent with the provisions of the Constitution. Indeed, the Constitution in Article 2 states, that any law which contravenes it is null and void to the extent of the inconsistency. It is basic constitutional law that a government cannot amend the aforementioned articles of the Constitution by means of ordinary legislation.
Yes, Parliament may pass legislation that grants citizenship, but Parliament cannot grant by way of legislation, a constitutional right to citizenship. Only an amendment to the Constitution can do that and the process for amending is clearly set out in Article 54 (3)(b)(i) and (ii). This, Dame Joan, is why we need a referendum. This, Dame Joan, is why we need to, as you say, “trouble the constitution”. Anything less leaves the granting of the right to citizenship to the whim of a government.
It is for this reason that her further assertions, nay rantings, re the changes made to the law of inheritance via the Inheritance Act, and to the law of divorce via the Matrimonial Causes Act by ordinary legislation are misleading at best. There is no constitutional right to the passing of property, nor is there a constitutional right to divorce. The aforementioned Acts therefore did not seek to amend the Constitution, neither did they seek to take away rights granted by the Constitution, and/or give rights not contained therein. Their enactment had absolutely no effect on the Constitution. As such, Parliament was free to amend the law by ordinary Act of Parliament.
The aspect of the rant that truly astounded me was when Dame Joan said that innocent children are being used to mask what is the government’s true agenda. That agenda she states is the LGBT agenda. What the exact nature of this purported “agenda” is remains a mystery.
Truly, this part of the speech left me speechless. Legally there is a difference between sex, sexual orientation and gender. The House of Lords in 1970 in the case of Corbett v Corbett  2 All ER 33 made the distinction between sex, sexual orientation and gender. The layman’s confusion about these matters and terms is understandable; a past Chief Justice’s ignorance is inexcusable. If the purpose of this purported “agenda” is to pave the way for gay marriage and gay rights as many persons, including Dame Joan seem to believe, then the aim of Bill 4, in simply adding the word ‘sex’ to Article 26 falls far, far short of that mark.
To attain this “agenda” will require the removal of Article 26(4)(c) from the Constitution, which permits discrimination in marriage laws; the addition of the words ‘sexual orientation’ to Article 26 of the Constitution, and the amendment of section 21 of the Matrimonial Causes Act which makes void, marriages between same sex couples. None of these changes are on the table on June 7. None.
Dame Joan exclaims that fairness requires one to do the right thing. She claims the honest thing to do is to correct what has been mis-done. With this I wholeheartedly agree. In that vein, fairness demands correcting the discrimination evident in the citizenship provisions of the Constitution, and adding the right not to be discriminated against on the ground of sex so that, for instance, men nor women may be paid less for the same work on the basis of their sex. Indeed, the only right thing to do is to correct what has been mis-done. This is the only agenda of this constitutional referendum.
A DISAPPOINTED AND CONCERNED LAWYER
June 2, 2016.