Law is interpretive

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May 24, 2016

Dear Editor,

Law is interpretive. Many will argue that law is based on facts, upon carefully weighed evidence. Problem occurs when neither side to a dispute can produce the required facts or sufficient evidence. This is why the appellate courts always have an odd number of judges, and side with the majority of opinions.

Recently my family was involved in a legal matter that went to the Court of Appeal. One judge ruled in our favor, two judges ruled against. The three judges quoted the same law, with varying interpretations. I was baffled as to how three esteemed judges could vary when presented with the same facts and evidence, being guided by the same law, and by so doing overturned a ruling made by the Supreme Court. Was the Supreme Court in error? What is it about laws that give so much margin for error, or differences of opinion?

I surmised that each judge gave his or her legal and or professional opinion. What does this say about our laws and our legal system? Are we relegated to opinions?

I think as a nation we should keep these questions in mind when voting in the upcoming referendum on gender equality. In my opinion, all four of the pieces of legislation presented before the Bahamian people are wonderful and should have been implemented since 1973. However, I would like to show why, again, in my opinion, amendment number two has one significant oversight and amendment number four has a declaration that readily leads to interpretation.

Bill number two is an amendment to article 8 of the constitution. I listened with great care as a government representative expressed the view that thousands of Bahamians are disenfranchised, hurt and suffering by the provision of article 8. Yet, I was shocked to learn that nothing in this amendment would address their plight, only the plight of future Bahamians.

How is it that there is no provision made for those who are already hurting? Do we simply cause them to suffer forever? My suggestion is that this amendment be retroactive.

Bill number four is replacement of article 26 of the constitution. The word "sex", by its very nature, is interpretative - that is, it has many meanings to various cultures and time periods. The word "gender" would reduce the need for interpretation. We are debating a gender equality bill and not a sex equality bill. gives six meanings for the word sex. Sex is a noun and a verb. Gender has two meanings and is a noun only. The concept behind the bill is wonderful, but the wording leaves room for interpretation.

It should be noted too that Chapter III section 15 of the Fundamental Rights and Freedoms of the Individual section of the constitution already provides equality based on sex. It is not the constitution that discriminates. It is the law that discriminates.

There is also the issue of transgender equality. To the transgendered they are one gender living in the opposite gender's body. The legal system relies on fact as much as possible and the biological definition of gender is quite clear. From a biological point of view, gender is determined based upon the reproductive organs and not the mind. The law totally overlooks the psychological point of view, as we cannot see into a person's mind, thus there is no evidence to present other than a professional opinion.

Imagine if you will two men appearing before the registrar for a marriage certificate, but being denied on the basis that the law prohibits same-sex marriages. The law discriminates based on sex - that is, two persons of the same sex cannot marry each other. However the constitutional amendment being proposed does not allow discrimination based upon sex, so that law would become unconstitutional.

Under our parliamentary democracy the people have a right to vote, to make laws and amend laws. It is a system based on majority rule, but the majority is not always right as history has shown. We should not simply believe that the amendments as written are flawless, but examine each word in each proposed amendment to see how best to address the issue of gender equality in the nation.

Do keep in mind that gender equality is not the biggest problem facing the nation. There are much greater problems that need immediate solutions that are not being addressed on the national level. Just as surely as we are demanding gender equality, let us take this opportunity to move those persons in Parliament to address the broader and more pressing issues facing the nation, not just by their words and promises, but with legislation.

As a Christian nation we should not merely vote based on the opinion of a statesman or pastor or upon our conscience. All of the aforementioned are subject to error.

We should ask God how to vote and be certain that He will guide us accordingly.

- Cornelius McKinney

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News date : 05/24/2016    Category : Letters, Nassau Guardian Stories

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