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.
Comments
birdiestrachan 8 years, 8 months ago
I am voting Yes to #4 the other three no. It is my choice and my vote.
themessenger 8 years, 8 months ago
Surfacing for a breath of fresh air again Birdie? Must be pretty putrid down there where you bottom feeders congregate, you wouldn't know right from wrong if it bit you on the ass.
sheeprunner12 8 years, 8 months ago
Sooooooo, based on a known homosexual lawyer's word ............. how can the Constitution guarantee no discrimination on the grounds of "sex" when it is included in Article 15 but not included in Article 26??????? .......... these lawyers are just a sleazy bunch that are showing their true colours right now ........ its either legal or illegal, right or wrong ..........SMT
Well_mudda_take_sic 8 years, 8 months ago
As loquacious as Mr. Mortimer is on bill # 4, he has failed to address why the corrupt Christie-led PLP government has steadfastly refused to amend the existing bill or add a new bill to unequivocally define the term "marriage" as the legal union in wedlock of a man and a woman to the exclusion of all other forms of union whether man to a man, woman to a woman, man to a sheep or woman to a sheep. The vast majority of Bahamians, consistent with our unique culture and identity as Bahamians, have publicly voiced our desire for such a hard and fast unequivocal definition of the term "marriage" in our constitution so as preserve the sanctity of marriage as we have known it for centuries and prohibit "same sex marriages". It is perhaps worthy of note that Mr. Mortimer is a partner of that other QC in the law firm of Callendars, namely Fred Smith, whose sexual persuasion is well known to many.
sheeprunner12 8 years, 8 months ago
Agreed ......... 100%
jackbnimble 8 years, 7 months ago
Someone, who I assume is part of the Constitutional Commission, actually commented about this online. The individual said it was the Government's decision not to entrench marriage (as between born men and women) into the Constitution as they did not think it would be fair to "future generations" and wanted to leave it open for future generations to decide. Such a cop-out! We are the future and we have to protect the future. Personally, all the comment did was make me even more suspicious.
I guess they are waiting around for all the people (which is the vast majority of the voting public) who have a problem with gay marriage to die out with the hope that our grandchildren would have finally decided to "co-exist with global views on homosexuality" (PM's words) and make gay marriage legal. While the above wording of the 4th Bill may not lead to same-sex marriage the reason, in my opinion, for not amending the Bill as initially proposed is clearly suspect. Small wonder the NO vote is being fueled daily.
sheeprunner12 8 years, 8 months ago
That less than 1% of "dispossessed" people are what the PLP are fighting for to get their "equal rights" ...... especially those in the rainbow coalition
POINTS TO PONDER
How many so-called non-national persons born overseas REALLY want Bahamian citizenship???? ........ how many Bahamian women who marry foreigners REALLY want their husbands to get Bahamian citizenship????? ...... how many Bahamian men who have outside children are even REALLY checking for these children to give them their names/titles/citizenship????? ............ the vast majority of Bahamian women only want to have children so they can get the benefits of the "baby daddies" .......... how many people will REALLY and TRULY benefit from this "waste of time" hullaballo Referendum ?????? ........ 5,000, 10,000????? ...... and at what cost (to the vast majority of bona fide Bahamians) to the future national security and cultural integrity of our country?????? ................... why has Pindling not been condemned for giving us this Taliban-like law in 1973????? ....... I await a response from the stalwart PLP cheerleaders - Sean, Sharon, Neil, Ruby, Lester & Co.
Economist 8 years, 7 months ago
It was a different time and era when our Constitution was drawn. It was based on the constitutions of many new nations created out of British colonies.
Its basis goes back to the late 1950's, before women had the right to vote (1962 for The Bahamas).
The world and The Bahamas, in particular, was still a mans world, the women's lib movement of the 1960's was just baring fruit.
We have since signed up to many international treaties and conventions and the proposed amendments are part of our commitments to those agreements.
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