EDITOR, The Tribune.

I should be most grateful if you would be so kind as to afford me a little space in your most valuable publication to posit my humble views on some of the issues that are being ventilated in connection with the upcoming referendum, and in particular Bill Number 4 which seems to attract the lion’s share of attention.

That Bill substantively seeks to add the word “sex” in the definition of the expression “discriminatory” at the end of the list of descriptions of persons who may not be subjected to different treatment on the basis of such description. The Bill also defines sex as male or female.

There is, for some reason, a great concern, apparently quite genuinely held by many people that the passing of this Bill in the referendum will open the door for same sex marriages in this country.

In my opinion, this view is wholly misconceived for the following reasons:

The fundamental rights provisions of The Constitution do not confer any rights on anyone but instead they recognise that every person in The Bahamas is entitled to such rights [Article 15]. As far back as 1967, the Privy Council in an appeal from Jamaica held that Chapter III of The Constitution of Jamaica, which is in similar terms as our constitution, “proceeds on the presumption that the fundamental rights which it covers are already secured to the people of Jamaica by existing law. The laws in force are not to be subject to scrutiny in order to see whether or not they conform to the precise terms of the protective provisions. The object of these provisions is to ensure that no future enactment shall in any matter which the chapter covers derogate from the rights which at the coming into force of the Constitution the individual enjoyed.”

In the case of Boyce and Joseph v The Queen, which was a Privy Council appeal from Barbados, Lord Hoffman delivering the majority decision of the Board said the following about the constitution of Barbados:

“13. Among the entrenched provisions was Chapter III, headed “Protection of Fundamental Rights and Freedoms of the Individual”.

This chapter began (in section 11) with a declaration that “every person in Barbados is entitled to the fundamental rights and freedom of the individual” including “life, liberty and the security of the person” and a list of other human rights familiar from international human rights instruments starting with the Universal Declaration of Human Rights adopted by the General Assembly of the United Nations in 1948. Section 11 went on to say that the following provisions to Chapter III were to have effect for “affording protection to those rights and freedoms.

1. Section 12 to 23 then set out in detail the extent of the protection which the constitution afforded to the specified rights and freedoms, together with limitations “designed to ensure that the enjoyment of the said rights and freedoms by any individual does not prejudice the rights and freedoms of others or the public interest.” The drafting of these sections was strongly influenced by the terms of the European Convention of Human Rights.”

In paragraph 15, the Board opined that the European Convention on Human Rights had in fact applied in Barbados while it was a colony. In 1953, the United Kingdom government made a declaration pursuant to the convention extending its application to Barbados and its other colonies, the opinion also states that the Convention bound the United Kingdom in respect of its government of Barbados, only as a matter of international law. But as Chapter III of the Constitution was part of the Supreme Law of Barbados the rights which it protected took priority over all other laws.

As we know, The Bahamas, like Jamaica and Barbados, was a colony of the United Kingdom until its independence in 1973 and our Constitution is in similar if not identical terms to those of Barbados and Jamaica, in fact Article 15 of our Constitution is identical to section 11 of the Barbados Constitution. It is apparent therefore that everything that was said about the Constitution of Barbados applies to our Constitution.

It means that all of the rights which were provided for by the Universal Declaration of Human Rights and the European Covenant on Human Rights were applicable to persons in The Bahamas before the Constitution of 1963 came into force. They continue to be in force under subsequent Constitutions including the Independence Constitution.

Prior to the coming into force of the Constitution, those rights could have been abolished by an Act of Parliament as there was no protection for the same. The tail piece of Article 15 of our Constitution states:

“The subsequent provisions of this Chapter shall have effect for the purpose of affording protection to the aforesaid rights and freedoms subject to such limitations of that protection as are contained in those provisions, being limitations designed to ensure that the enjoyment of the said rights and freedoms by any individual does not prejudice the rights and freedoms of others or the public interest.”

Those subsequent provisions begin at Article 16 and end at Article 27 with each Article addressing the protection of a different right or set of rights.

Article 26 Addresses the “protection from discrimination on the grounds of race etc.” and it states:

“(1). Subject to the provisions 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.

(2) Subject to the provisions of paragraphs (6), (9) and (10) of this Article, no person shall be treated in a discriminatory manner by any person acting by virtue of any written law or in the performance of the function of any public office or any public authority.”

Paragraph 3 defines the word “discriminatory” which appears in both paragraphs 1 and 2 as “affording different treatment to different person attributable wholly or mainly to their respective descriptions by race, place of origin, political opinions, colour or creed whereby person of one such description are subjected to disabilities or restrictions to which person of another such description are not made subject or are accorded privileges or advantages which are not accorded to persons of another such description.”

Paragraph (4) is of supreme importance in the context of the present discussion. It states as follows:

“Paragraph (1) of this Article shall not apply to any law so far as it makes provisions-

(c) with respect to adoption, marriage, divorce, burial, devolution of property on death or other matters of personal law”.

What then is the effect of paragraph (4) (c)?

In my humble opinion, the effect is that there is no constitutional protection in respect to marriage and divorce and other matters of personal law so that an Act of Parliament relating to marriage and divorce which is alleged to be discriminatory as that word is defined could not be struck down by the court on the ground that it offends Article 26 (1) because paragraph (4) (c) states very clearly that paragraph (1) does not apply to marriage and divorce.

Section 21 of the Matrimonial Causes Act provides that a marriage shall be void where the parties are not respectively male and female, and this cannot be challenged on the basis that it violates Article 26 of the constitution by virtue of paragraph 4 (c).

Assuming, therefore, that the political directorate has an agenda to legalise same sex marriages, it plainly cannot achieve that end by bringing within the protective regime of Article 26 discrimination on the basis of sex and defining that term as male or female simply because as shown above, matters concerning marriage are not themselves within that protective regime. In order for any such agenda to be realised in this country, it would be necessary to either amend the Matrimonial Causes Act to validate such marriages or the Constitution by removing Article 26 (4) (c), which can only be achieved by a Bill that passes with a three quarters majority in each House and in addition the majority of voters in a referendum.

As indicated above, at present, whilst the freedom from discrimination on the basis of sex is a right to which every person in the Bahamas is entitled, that right is not protected by the Constitution which is declared by Article 2 to be the Supreme law. Subject to the provisions of the Constitution if any other law is inconsistent with it the Constitution shall prevail and the other law shall be void to the extent of the inconsistency, as Article 26 (1) does not apply to such right. The proposed amendments will correct this anomaly. That is all that it can and would do.

I sincerely hope that this letter may bring a modicum of clarity to this most important issue in the history of our young nation.

THOMAS A E EVANS, QC

Nassau,

May 11, 2016.