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Dame Joan Is Wrong

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 [1971] 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

Nassau,

June 2, 2016.

Comments

sunshine242 3 years, 3 months ago

Right or wrong the people will decide come june 7th 2016. Stay tune you may learn somthing new

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Publius 3 years, 3 months ago

Legally there is a difference between sex, sexual orientation and gender. The House of Lords in 1970 in the case of Corbett v Corbett [1971] 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.

Amen!

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.

Exactly! And a longstanding Judge should know this. Is there any wonder why this country is where it is today?

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Well_mudda_take_sic 3 years, 3 months ago

For the record Dame Joan is 100% correct and I will be voting a resounding "No!" to all four of the bills in tomorrow's referendum. Like most Bahamians I am only intolerant of others who seek to impinge on my rights, my freedoms and my way of life as a Bahamian. This bucket obviously does not include the vast majority of Bahamian men or Bahamian women, but it does include the many thousands of foreigners who are willing to sell their loyalty to the PLP (or FNM for that matter) in exchange for our government (with its hidden agenda) granting them Bahamian citizenship or permanent resident status. And this bucket certainly does include the very loud few in the global LGBT movement who seek to impose their way of life on others under the pretense of the rest of us (the 98+% of us) discriminating against them. The vast majority of Bahamians (both men and women) should not have to give up any of their rights, freedoms and beliefs, nor compromise in any way their way of life, simply because a small few in our society falsely accuse them of being somehow discriminatory. I, along with the other 98+% of Bahamians, have rights too!

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Greentea 3 years, 3 months ago

This is an excellent rebuttal. As someone who deeply admired Dame Joan's achievement growing up, I was appalled and deeply disappointed by her statements. The fact that they appear to have been made in complete ignorance of the law sadly says more about her legacy than I care to think through at this moment. Well_Mudda_Take_Sic Dame Joan was "wrong" legally. Whether she was "right" spiritually I will leave that up to you and those that think as she does. Since I am not on that particular run- your one "no" vote will be cancelled by my one "yes" vote.

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thephoenix562 3 years, 3 months ago

Is she wrong really? or does she just have a different opinion?

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ThisIsOurs 3 years, 3 months ago

She never made any assertion that passing a law equated to an amendment in the constitution. Also I understand she was not there as a part of a panel, she just made a statement, so the statement that she was "ill-prepared" is ludicrous. Her only point is that the issues in 1-3 "can" and similar issues have been addressed in law, and if the proposed articles allude to the "discretion of the minister", guess what? Government can still do what they please. Tired of this orchestrated attack against Dame Joan. She is an accomplished woman, any "equality" debate should not be tearing her down

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Publius 3 years, 3 months ago

I don't agree with personally attacking anyone for their points of view, but the point the letter writer is making is that if a government can give you something, it can take it away from you. That is the difference between having an entrenched constitutional right and having something given to you by simple legislation. Simple legislation gives a politician the final call. The Constitution is the Supreme Law, above all.

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ThisIsOurs 3 years, 3 months ago

Yeah but if the article leaves it up to the discretion of the minister where does all of this leave us?

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Publius 3 years, 3 months ago

That is why the proposed amendment exists, to take it out of the hand of the whim of a politician and enable Bahamian women and Bahamian men to have the entrenched right that no politician can take from them or deny them.

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hallmark 3 years, 3 months ago

In my opinion, our governments have been the biggest obstacle to equality, and not the constitution. Our government TAKE more than they ever give to us and I don't trust them as far as I can throw them. I side with Dame Sawyer and I will be voting NO, NO, NO and HELL NO!

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maryann 3 years, 3 months ago

How can a government who is preaching equality pulls one of their supporters talk show from the airwaves and cancel opposing ads from the radio and television, and only see the need to sponsor one side with the public"s purse to which both the yes and mo voters have to pay back.In this day and age is this equality?

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juju 3 years, 3 months ago

It appears that many of you Bahamian gentlemen,... Or men, are chauvinist, short sighted, xenophobic, and making this Referendum a political affair instead of just enabling the equality of women. This is the 21st century and the Bahamas needs to move ahead with the times. Come on smart guys... Stand up and vote yes!

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Sickened 3 years, 3 months ago

These are the smart guys. The dumb ones can't even read what you wrote.

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