Gender equality and the constitutional amendment bills

Sat, May 28th 2016, 07:49 AM

o This commentary is adapted from a speech given by attorney Michael Scott at a panel discussion on May 24 at Eugene Dupuch Law School on the constitutional referendum bills.

Thank you for the opportunity to be part of this panel discussion considering the implications of the upcoming referendum on June 7, 2016 voting on the four constitutional amendment bills which passed Parliament with the requisite three quarters majority in both chambers in April of this year.

If approved by a majority of Bahamians the amendments will enable changes to our constitution that will harmonize our laws with our treaty obligations under the United Nations Convention on the Elimination of Discrimination Against Women to which The Bahamas subscribed in 1993.

The first attempt to incorporate these treaty obligations into our domestic law occurred in February 2002 and was defeated. This is now, some 14 years later, the second attempt at gender equality. Briefly stated the four bills provide the following.

Bill one
That a child born outside of The Bahamas to a Bahamian mother and a non-Bahamian father should have automatic citizenship at birth.

I note firstly that this provision will not be retroactive, which I find curious since the prime minister said in Parliament that as a matter of administrative policy persons caught in this category will be processed routinely. So why not deal with it in the bill and make it retroactive?

What you may ask does this amendment mean to you in real or practical terms?

Think on this illustration which is pregnant with a number of twists. Bahamian mother married to a non-Bahamian husband (met in university where they were both students) and who is pregnant with their fourth child. The other three children are born in The Bahamas and are Bahamian citizens - see article 6 of the current constitution. The husband we can assume is at least on a spousal permit.

The mother is having a difficult pregnancy and needs to see a specialist in Miami. She is now at seven and a half months and on the cusp of not being able to fly. She flies to Miami with her husband to see the specialist on Bahamasair as the carrier; and of course the return flight is booked on this carrier as well.

She sees the specialist who tells her that the birth may be premature and there could be issues. She is now nervous and she gets to the airport to find out about the usual delays that Bahamasair is world famous for. Panic sets in; and her husband drenched in sweat buys two one-way, first-class tickets on American to get home. Those are the only seats available. They board the flight, the husband trying to console his wife now overcome with anxiety, the cramps set in and then the inevitable: the waterbag goes and she starts to scream and we have an emergency.

Happily, American performs admirably and there is a doctor onboard and by the time LPIA is in sight mutual felicitations and congratulations abound at the birth of a baby girl, the fourth addition to the family. While the baby is an estimated healthy seven-pound girl it, dawns on her mother that her child is a U.S. citizen because American is a U.S. flagged aircraft and probably also a foreign national (see article 14 of the constitution), but definitely not a Bahamian.

Ladies and gentlemen she is now a  hostage to Fred Mitchell. This child will never need a visa to go to the United States, will never need a green card, but in her family she will be a victim of immigration apartheid. Her siblings are Bahamians. She is not. In order to travel as a child she will have to obtain, realistically, a U.S. passport. When they travel in future and return to The Bahamas she and her father can queue in one immigration line, the rest of the family in another. That cannot be right, can it?

Bill two
The second bill allows a Bahamian woman who marries a non-Bahamian man to secure to him the same access to citizenship that a Bahamian man has always enjoyed under the constitution in relation to a wife subject to the safeguards against abuse provided for legislatively. I understand there is a suggestion that this bill is a license for unbridled immigration by foreign men. In fact, reject this bill and further amend the constitution to disable Bahamian from conveying this right to non-Bahamian women is the xenophobic imperative.

I do not understand this kind of thinking. This is reactionary even by nineteenth century standards. As a modern progressive democracy we should err, if at all, on the side of enlarging rights not abridging them.

At the end of the day we are not talking about a significant number of persons. There aren't a huge number of men waiting, like barbarians at the gate, to defraud Bahamian women just to get Bahamian citizenship. That is just xenophobia. Of all of the nations of world the Current United Nations statistics indicate less than two dozen that discriminate against women this way, and most of them are in Sub-Saharan Africa and the Islamic world.

I noted with shock the opinion of Harvey Tynes, Q.C. that Bahamians should not only reject this bill, but take away the constitutional right of a Bahamian man to pass this right to his non-Bahamian wife. In my view this is a little disingenuous given that Harvey's wife would have acquired Bahamian citizenship in order to be called to our local bar being originally from a Caribbean jurisdiction. She practices as an attorney. I hope Charles Dickens will forgive my lament that this is not the best of Tynes and in fact may be the very worst of Tynes. I cannot respect people who pay lip service to their convictions.

Bill three
The third bill seeks to correct a historical anomaly which has led to discrimination against men in the constitution. Unmarried men cannot convey citizenship to their illegitimate children. This is an historical perversion in the law's development that treated illegitimacy as a sin and a legal nullity so far as men were impacted. So children born this way were treated as the "natural" children of their mothers and thus inherited their status. As far as men were concerned their illegitimate children were bastards and they had no legal obligation towards them. This carried over into the realm of private international law and affected the ancient rules relating to domicile. Provided there is proof of paternity this amendment corrects this inequity.

Bill four
The fourth and perhaps most contentious bill is the fourth bill which would add the word "sex", defined as male and female, to article 26 so that it would be unconstitutional for Parliament to pass laws which discriminate on the basis of sex and deny equal treatment under the law.

This amendment is designed to ensure practical goals such as equality of treatment in the workplace, healthcare, equal pay for equal work and other instances of modern life. It is a functional description of gender for equality purposes not an expose into sexual orientation.

Ladies and gentlemen this amendment has absolutely nothing to do with same-sex marriage. It is not intended as a gateway to same-sex marriage as it appears now to be the direction in the U.S.A. after a series of U.S. Supreme Court decisions.

This will not happen because article 26(4) permits some forms of discrimination. One form of discrimination encompasses restrictions in our matrimonial law. Section 21(c) of the Matrimonial Causes Act invalidates marriage other than between a man and a woman. The subsection specifically saves this as a permitted discrimination notwithstanding the constitutional ban on discrimination. The only way the law can be changed will be through parliamentary intervention not through judicial legislation, which is a pathological fear of the apostles of anger and intolerance one sees aggressively reflected on social media.

Ladies and gentlemen I could end there but it would be remiss of me if I did without a few observations of regret that a laudable effort to remedy a social injustice in the interests of moral fairness has become enmeshed in a maelstrom of revenge, misogyny, homophobia and xenophobia.

I am appalled that religious leaders who should know better have confused religious conviction with prejudice and bigotry.

I understand those persons who want to exact revenge particularly when I hear the deputy prime minister say he has nothing to apologize for, a statement which in my respectful view could only have been made without the benefit of sincerity.

I understand the almost unquenchable thirst for revenge when you have a well-known cleric leading the charge for the government then in opposition in 2002 talking nonsense about the failure to consult the cloth, but now saying in 2016 it was not a religious issue after all. It is what the rest of us always knew it was, a secular human rights issue that affects more than one half of the Bahamian population. He wasn't alone. There are others in a slag heap of moral incontinence who took one view and now take another. Many Bahamians if they are not angry are certainly confused.

I understand it is emotionally wrenching for many Bahamians, because if we say yes to revenge, yes to xenophobia, yes to homophobia, yes to misogyny, we say no to many Bahamian women and no to many Bahamian children; very difficult, a kind of "quagmire" to borrow a word from the lexicon of the leader of the opposition.

Leadership
And where has been his leadership? He tells us we must vote our conscience. What in God's name does that mean for someone in a position of leadership who claims to have read and thoroughly understood the bills and voted for their passage in Parliament? He could have voted no, but he voted yes.

There is a right and a wrong side to history. On fundamental human rights issues like this, the test of leadership requires moral certainty not moral ambivalence. Where would humanity be if Abraham Lincoln had simply told Congress in the United States in 1864 to vote their conscience on the thirteenth amendment that abolished slavery in the U.S.A. rather than work relentlessly to ensure its passage? If Martin Luther King Jr. and John F. Kennedy and Bobby Kennedy had not sacrificed ultimately with their lives in aid of the civil rights movement in the 1960s in the U.S.? If Nelson Mandela had not given up 27 years of his life in the 1960s onwards and suffered tremendous deprivation in the fight against apartheid in South Africa?

In each of the cases above the persons mentioned were in no doubt as to the course which history demanded of them and worked assiduously to achieve their goals. Are we not, all of us, all of humanity, better off for their sacrifice?

In each case I cite above all of these men were men of courage who stood up for justice, for fundamental human rights, for fairness, for freedom, for social equality. In short, they were not moral cowards.

So where is Minnis now in all of this? It seems to me he is running for political cover. That is the message of the media. He appears hell-bent on following the path blazed for him by another leader of the opposition in 2002. As The Guardian editorial put it so succinctly today, real leaders take a position. They stand for something.

Minnis, I am pleased to say, is an aberration from the perspective of the FNM, which has always been on the cutting edge of women's rights beginning with the Constitutional Conference in 1972. The source of my knowledge, which I verily believe to be correct and true, is Sir Arthur Foulkes, one of the framers of our constitution. The FNM attempted to deal with the issue of gender equality at the time but were outvoted by the British government and the Pindling government on the final draft of the document.

The constitution is our ultimate contract of association with each other. While it will require modification from time to time to ensure it adapts to changing social mores, these changes must be made carefully, always with a view to doing the right thing as Martin Luther King Jr. once so poignantly captured it," The arc of the moral universe is long, but it bends towards justice." Or, as his namesake  before him, Martin Luther, put it in terms trenchantly, "The time is always right to do that which is right."

The ultimate litmus test for evolution must be fairness and a more just society. So I urge you to put aside emotion, fear, prejudice and anger and vote yes, remembering always that to neglect half of our great country is to deny the whole.

Our women matter. Our children matter. We cannot be making arid distinctions as to which child gets a passport and which child does not.

I cannot envisage a more important fundamental rights issue than one which captures more than  half of all Bahamians.

We must not be morally incontinent which Aristotle tells us is a failure to follow our better instincts, remembering always the challenge of Abraham Lincoln on the seminal issues of our lives that we be guided by our better angels.

Thank you for your kind attention.

o Michael Scott is an attorney and was formerly a FNM candidate, board chairman, and council member.

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