Constitutional Amendment Debate 'serious business'

by: Barbara Walkin, FN Night Editor

Gender equality and citizenship rights, Wednesday morning topped the agenda for debate in the House of Assembly as the members of the honorable house began their presentations on Amendment to the Constitution.

Calling it a matter of, "very serious business,"  Minister of Transport and Aviation, Glenys Hanna-Martin said, "the Debate today begins yet another critical step in the purposeful shaping of our social reality, in the pursuit of equity, fairness, justice, equality.

" Today begins therefore a very critical intervention in our nation's history and in our social evolution as a people.

" It is very serious business,"  said added.

Hanna-Martin noted, "we are today moving amendments to specific clauses of our Constitution: these are what are called entrenched"  clauses of our constitution.

" We are debating those recommended amendments to our constitution which are embodied in the Bills before this House and which are based upon the principles of equality between men and women and which bestow on children the right to attain Bahamian citizenship in two instances: the first is where she is born outside of The Bahamas to her Bahamian born mother and her non Bahamian father whether in or out of marriage.

" The amendment will give that child automatic Bahamian citizenship transmitted from her Bahamian mother and in the second instance where the child is born to a Bahamian father out of wedlock whether in The Bahamas or outside of The Bahamas that child will automatically take his father's Bahamian nationality subject to the paternity of that child being legally established.

" Granting the right of citizenship to the spouses of both Bahamian men and women subject to the restrictions or scrutiny as aforesaid.

" And finally, the Bill prohibiting discrimination against any person based upon their sex but subject to the exceptions already set out and subject to existing laws such as the Matrimonial Causes Act which defines that marriage is between a man and a woman." 

She noted that these are not ordinary provisions and the Constitution provides for an extraordinary procedure should at any time there be an effort to amend or in any way alter such entrenched provisions.

Hanna-Martin said that just 51 years ago women were not allowed to participate in the electoral process, "yet today several of us sit in this Legislature as elected Members of Parliament, or as appointed senators, some sit in the Cabinet of our Commonwealth and hold critical portfolios.

" Indeed today a woman sits as Head of State,"  she added.

She noted that the Constitution makes these provisions "entrenched"  that is, they cannot be altered by any ordinary Parliamentary process and provides that any amendment to these specific clauses must first be passed by a mandatory three-quarter vote taken in both this House and the Senate but thereafter and further a referendum of the People must be held who will be called upon as provided for in our Constitution to vote "yes" or "no" to the proposed amendments.

" A simple majority of voters will determine the outcome,"  Hanna-Martin added.

This extended process is therefore mandated by the Constitution as it relates to those provisions that touch upon the principles of citizenship and the fundamental rights and freedoms of the individual and which are entrenched in our Constitution, Hanna-Martin noted.

" Today begins that process but in truth the process began before today," she added, noting that this is not the first attempt at constitutional reform of entrenched provisions in this country since Independence.

" We will recall that in February 2002 a constitutional referendum was held to seek to alter a number of Articles, including the entrenched provisions in question today namely Articles 8 and 9 and 10 along with an array of other issues of constitutional reform such as the Boundaries Commission and the retirement age of judges, among other things." 

Noting that the 2002 exercise failed, Hanna-Martin quoted from the Report of the Constitutional Commission.

" And I quote ... "It is not the place of this Commission to attempt to speculate as to the reasons for the failure of the 2002 national referendum. Observers of the process, including academics, political scientists, and voters have referred to a confluence of events - contamination of the referendum by other political controversies; the imminence of a general election; decidedly mixed feelings among the electorate as to the citizenship-related aspects of the gender-equality issue; the complexity of the Bills; and the lack of public education - all of which may have played a part in varying degrees of importance. The Commission merely records these observations in passing because, as has been highlighted in the foreword, the 2002 referendum (as well as the more recent gambling referendum) has important implications for the process of constitutional reform on which we have embarked. This is particularly so when illuminated by the recent response of Caribbean electorates to referenda (some of which are referred to in the body of the report). The Commission has taken on-board the lessons of these failed processes. They dare not be ignored." 

Adding that unlike the Gambling Referendum which was not legally binding, Hanna-Martin said that this upcoming November 6 Referendum is a National Constitutional Referendum, and is therefore legally binding.

" The national constitutional referendum which is to take place after this debate after having attained 3/4ths vote in both houses of parliament and pursuant to Article 54 of the Constitution is; however, legally binding on all and, if agreed upon by a majority of the voters, will lead forthwith to an amendment to the Constitution or otherwise depending on the outcome of the vote" 

Hanna-Martin explained that the Amendments are to come into operation on the day of publication in the gazette of the result of the referendum showing that a majority of voters have approved the Bills.

" The effect will not be retroactive,"  she added.

There is a concentration on a singular concept and primary principle of equality between men and women and the removal of any discrimination against a child based upon the marriage or other circumstances of his parents in the provisions of the Constitution, Hanna-Martin said.

" Should these Bills successfully pass both Houses of Parliament and a majority vote of the electorate this will have the effect of immediately removing a fundamental structural inequity; however, this does not mean that we still do not have much work to do in our social setting to eradicate cultural bias which cannot simply be removed by a referendum process but will require changes in our attitudes towards each other which is a more difficult and complex process.

" But this is an important start to a more fair, more just human society,"  she said.

Hanna-Martin concluded, "Our constitution is a sacred document. And it is very important that nothing is done to trivialize or 'dumb down'  its import nor the critical nature of the exercise in seeking to alter its provisions." 

Published  Thursday, August 7, 2014 

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