GENDER EQUALITY and the Constitutional Amendment Bills 2016
Michael Ross Scott: 24th May 2016 - EDLS Panel Discussion:
Thank you for the opportunity to be part of this panel discussion considering the implications of the
upcoming Referendum on the 7th June 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 were defeated. This is now, some fourteen years later the second attempt at gender equality. Briefly
stated the four Bills provide:
1. 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 water
bag goes and she starts to scream and we have an emergency.
Happily, American performs admirably and there is a doctor on board 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 7 lbs girl it dawns on her mother that her child is a US
citizen because American is a US 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 US 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?
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2. 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 men 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 UN statistics
indicate less than two dozen that discriminate against women this way and most of them are in SubSaharan Africa and the Islamic world.
I noted with shock the opinion of Harvey Tynes QC, 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!
3. The Third bill seeks to correct an 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.
4. 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 work place, health care 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 USA after a
series of US 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
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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. 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 USA 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 US. 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
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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 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.
Michael Ross Scott
24th May 2016
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