The Tribune

By LAMECH JOHNSON

Tribune Staff Reporter

ljohnson@tribunemedia.net

NOTED attorney Fred Smith, QC, yesterday said the expressed position of Court of Appeal President Dame Anita Allen on the possible legality of same-sex marriages in The Bahamas is more than appropriate and chastised detractors who argued that she is unable to sit objectively on such cases that may arise in the future.

During a lecture last week, Dame Anita suggested that without a statutory provision clarifying that same-sex marriages would be unlawful in the Bahamas, one cannot conclusively say the law prohibits such unions. However, she stressed that her views were not endorsed by the Court of Appeal and were personal.

Marco City MP Greg Moss and Constitutional Commission Chairman Sean McWeeney, QC, disagreed with her, telling The Tribune last week that in the absence of a clear statute, the common law interpretation would prevail, and it would say that a marriage is between a man and a woman.

Mr Moss went further and said that she should recuse herself from potential cases involving same-sex marriage because she appeared prejudiced against the marriage status quo during the lecture at the Hilton.

Wayne Munroe, QC, has already stressed that it is not unusual for sitting judges to give lectures and disagreed with the position of Mr Moss, noting that the Constitution already gives people a right to family life and privacy, “which means a right to marry.”

Mr Smith, who has already stated his view on the constitutionality of same-sex marriages in the past, said yesterday: “It is quite proper for sitting judges to express their views in the appropriate forum as was done by Dame Anita Allen in a public lecture.

“Judges don’t live in isolation from society or in a social vacuum. They are precious jewels with as much to contribute to debate as anyone else. It’s high time more judges express views in an objective manner to develop society’s discussion on topical issues. And I can’t see on what basis the sitting president of the Court of Appeal cannot sit on cases concerning the issue of same-sex marriage.”

He added: “It’s an insult to her professionalism and the professionalism of judges in this country that she cannot rule objectively on a case. And what Mr Moss seemed to have forgotten is that each case is determined on its own facts. I think it’s an insult to try and muzzle the views of judges who can bring a balanced and logical perspective to the discussion.”

Mr Smith said his position, as indicated on April 27 prior to the gender equality referendum, remains the same.

“Article 15 of the Constitution already prohibits discrimination based on sex. Article 26 does not refer to sex and there’s been a continuing debate in different British Commonwealth countries as to the effect of Article 15,” he said.

In the recent case by Justice Indra Charles concerning use of parliamentary privilege to read and disclose private emails in the House of Assembly, the complainants had argued that Article 15 was a stand alone constitutional right.

“It is a declaration of broader rights unlike Article 23 and 26 (of the Constitution),” he added.

“This was decided by the Supreme Court and the Court of Appeal in the Bahamas in 1996 in a case argued by myself and Maurice Glinton, QC, before Dame Joan Sawyer in Harbour Lobster and Fish Co and Jeffrey Butler vs Attorney General, when the courts held that discrimination on the grounds of ‘sex’ and ‘gender’ were unconstitutional.

“I don’t know why successive FNM and PLP attorney generals have argued against the use of those rulings. The Constitution should not be static and Article 15 gives the Constitution room to grow and strengthen,” he stressed.

Dame Anita, in her lecture, argued the laws of the Bahamas do not discriminate on the basis of sex and facilitate not only marriages of every description but also consummation of the same.

Given the various challenges relating to the existing law, Dame Anita suggested that both the Marriage Act and the Matrimonial Causes Act require “reconstructing” to meet the needs of a changing society.

She said the Bahamas could amend its Constitution similar to the way Jamaica did in 2008, in declaring that no marriage other than between a man and a woman is recognised and of legal effect. But this, she said, may similarly be susceptible to a constitutional challenge.

She said the country must choose what it wants to do in deciding the definition of marriage.