Justice Hartman Longley, Appellate Court President Justice Dame Anita Allen, and Justice Neville Adderley at the ceremony to mark the launch of the legal year.
Photos: Tim Clarke/Tribune Staff
By LAMECH JOHNSON
Tribune Staff Reporter
CHIEF Justice Sir Hartman Longley has urged that equal rights for Bahamian women should not be delayed by critics who believe an amendment to the Constitution would facilitate the legality of same sex marriage.
The top judge recently spoke on the controversial issue at the opening of the new legal year, during a ceremony in the Supreme Court.
Addressing scores of judicial officers at the event, Sir Hartman declared his “unequivocal support to the efforts being made to provide legislatively for the equality of men and women before the law.”
“As I listen to the public discourse on the issues, I think it is unfair, for the reasons being given, that Bahamian women and those who support them are finding opposition to legislation which is primarily intended to level the playing field and correct an historical anomaly,” the chief justice added.
A recent report by the World Bank Group, titled “Women, Business and the Law 2016,” listed The Bahamas as one of 22 countries in the world whose constitutions do not allow for married women to convey their nationality to their children and spouses in the same way that men can.
Similarly, the report noted that the Bahamas is one of 44 countries in the world in which spouses do not have equal rights to convey citizenship. As such, the report cited the Bahamas as being one country of many that hosts “gender-based legal restrictions.”
The issue of gender equality is a part of the long-delayed constitutional referendum that has stalled since 2013.
“I say it is unfair because it appears that Bahamian women and those who support them are being asked, in some cases, by their opponents to either guarantee or prove beyond reasonable doubt that the proposed constitutional changes would not lead to the recognition or validation of same sex marriages before they support the bills. No one can give that assurance or guarantee,” Sir Hartman stressed last Wednesday.
“Anyone who has traversed constitutional law would know that the legal landscape is littered with examples of language in a constitution when construed broadly and purposively as constitutions are construed, leading to unintended consequences becoming the law, although it may not necessarily lead to them.”
He added: “Because constitutions are construed broadly and purposively, one may have difficulty guaranteeing a particular constitutional result no matter the force of the opinion.”
“Would the proposed language lead to the result the opponents contend for? I would not venture an opinion at this stage. However, I would say that in any event, judicial decisions are sometimes reversed by later statutory or legislative interventions.”
“For this reason, it seems to me to be unfair to delay the efforts to achieve constitutionally equality and equal rights for women. It is to the law that we must all look for protection and equal treatment. I unequivocally support the efforts to achieve equality for Bahamian women who have made tremendous contributions to the building of the nation,” he declared.
During the summer of 2014, Prime Minister Perry Christie tabled the four Constitutional Amendment Bills in the House of Assembly, which must be passed by three-quarters of support in both houses of Parliament for a referendum to be held.
The first bill would enable a child born outside the Bahamas to a Bahamian woman and a non-Bahamian father to have automatic Bahamian citizenship at birth. However, the government does not plan to have the clause operate retroactively.
The second bill would allow a Bahamian woman who marries a foreign man to secure for him the same access to Bahamian citizenship that a Bahamian man has always enjoyed under the Constitution in relation to his foreign wife.
The third bill seeks to remedy the one area of the Bahamas’ Constitution that discriminates against men based on gender. Presently, an unmarried Bahamian father cannot pass his citizenship to a child born to a foreign woman.
The bill would give an unwed Bahamian father the same right to pass citizenship to his child that a Bahamian woman has always had under the Constitution in relation to a child born to her out of wedlock, provided proof of paternity.
There is concern in some quarters that bill four, which seeks to end discrimination based on sex, could pave the way for gay marriage. The government has repeatedly said this concern is unwarranted.
Notwithstanding this assurance, Sir Hartman’s predecessor, Sir Michael Barnett, has already said that the Bahamas will have to address the issue of same sex marriage at some point because Bahamian society cannot “pretend these issues do not exist.”