EDITOR, The Tribune.
It is with great sadness that I read the comments of Dame Joan Sawyer, a former Chief Justice and President of the Court of Appeal, today.
I find it very difficult to believe, or rather to understand how, anyone with such a distinguished legal history considered it intellectually and socially responsible to comment on the four Constitutional Amendment Bills without actually reading them.
Moreover, I find it shocking that she would nevertheless conclude and disseminate to the Bahamian public her incorrect view that “there are two provisions in the Constitution that deal with discrimination”. I can only therefore conclude that her comments are a shameful attempt to mislead.
Dame Joan well knows that the courts of The Bahamas, up to and including the Judicial Committee of the Privy Council, decided that Article 15 does not in any way secure any of the fundamental rights and freedoms including the right not to be discriminated against.
In fact, Article 15 has been held by our courts to be non-justiciable, meaning no rights are derived from that article, and is in essence an introductory paragraph only. In fact, Dame Joan, writing for the Court of Appeal in Newbold et al v the Commissioner of Police and others SCCrApp 180 /2008, recognised that no rights were derived from Article 15.
On appeal to the Privy Council, the Law Lords agreed with Dame Joan and referred to Article 15 as a “recital proclaiming the entitlement to every person in The Bahamas to fundamental rights and freedoms“. They concluded that, “article 15 has no relevance or application, save as a preamble and introduction to the subsequently conferred rights.” See Newbold et al v the Commissioner of Police and others (2014) 84 WIR 8 agreed,
Article 26 then is the only provision in the Bill of Rights that provides the right not to be discriminated against, and for which Article 28 specifically provides relief. The statement of Dame Joan that “to some extent they are trying to draw out of the constitution what is already there, which is a matter of interpretation” is therefore most disingenuous, for she well knows that as the provision stands today, it does not include sex. It is not, contrary to her statement, a matter of interpretation. The constitutional right not to be discriminated against on the ground of sex does not in fact exist for Bahamians.
Dame Joan is further quoted as stating “things that are going on, on television saying women are treated differently from men, that’s a conclusion based on what fact? And if we are treated differently, how are we treated differently?” The answer to this question is simple and would have been clear to her had she read the proposed Bills.
It is pellucid, on the reading of the Constitution that discrimination exists in Articles 8, 10 and 14. Only Bahamian men have the right to pass on citizenship to any of their children born outside The Bahamas. Bahamian women are not afforded the same right. Moreover, the foreign wife of a Bahamian man is entitled to citizenship; but the foreign husband of a Bahamian woman is not. An unmarried Bahamian man cannot pass on his citizenship to his child; but an unmarried Bahamian woman can.
I find it amazing that as eminent a jurist as Dame Joan was, she does not seem to appreciate that Bahamians are in fact treated differently in the Constitution, and that it is this unequal treatment that the Constitutional Bills seek to change.
Finally, she is also quoted as saying: “I don’t want to be equal to a man. I want to be me; I’m complementary to a man. I don’t want to change what God has [done].” While it is her right to desire inequality for herself, it is distasteful for Dame Joan to seek to convince others that inequality does not exist in the Constitution; and further to dismiss any movement to rectify this inequality as a waste of time.
Any movement, seeking equal rights for all, should never be considered a waste of time.
A DISAPPOINTED AND CONCERNED LAWYER
April 25, 2016