An argument before its time
Gender equality a civil rights issue
By CANDIA DAMES
A package of controversial constitutional amendment bills appears set to get the approval of members of Parliament today, but the reform effort continues to face serious opposition among Bahamians.
Among the arguments now being advanced against gender equality is that the constitutional framers must have had good reason to agree to the provisions they agreed to at the independence conference in London in 1972.
There are some who believe that “tinkering with” or “messing with” the constitution would be tantamount to altering the Holy Bible.
This, however, is among the weaker arguments being made ahead of the November 6 referendum.
Our framers were men. They were not infallible.
If we follow the logic that is being put forth now, then we would all still be slaves. The U.S. constitutional framers encoded in their document that a person of African descent was three-fifths of a human being. Are we to place those words above challenge?
The gender equality issue is a civil rights matter, as was slavery, as was the right to vote in The Bahamas for both men and women.
Anticipating that the constitution would be changed one day, our own framers put provisions in on how to change different articles. That move established that the constitution is a living document. Indeed, no constitution in any country is cast in steel.
The most important articles, those dealing with citizenship and provisions for the protection of fundamental rights, require a three-quarters vote in the House of Assembly and the Senate and a majority vote in a referendum.
On November 6, Bahamians are set to vote in what will be the second constitutional referendum since the current constitution came into effect on July 10, 1973.
Former Governor General Sir Arthur Foulkes is one of six signatories to the constitution who are still with us today.
Sir Arthur told National Review that not all the framers of the constitution thought discrimination against women was the best course, but it ended up being the agreed position at the end of the 1972 talks with the British.
“Some of us argued for full equality for women even though I see some attempts are being made to rewrite history in that regard, but some of us argued at the conference and even before the conference that women be given the same rights as men,” said Sir Arthur, who was a part of the opposition delegation that attended the independence conference.
“That argument was before its time, I guess. The practice at the time in matters of citizenship and marriage, was the woman followed the man. The British government took that position.”
Today, that remains a strongly held view among many people.
While saying he is not opposed to women having the same rights as men, A. Loftus Roker, who was a member of the government delegation in 1972, does not appear too comfortable with the idea of constitutional change, although he is not staunchly opposed to it.
“Men themselves should be feeling bad when they find that their children have to take the citizenship of his wife and not his citizenship and that he now wants to take the citizenship of his wife. That sounds funny to me. Maybe we know better,” Roker said.
The first constitutional amendment bill seeks to give a child born outside The Bahamas to a Bahamian-born mother and non-Bahamian father the same automatic right to Bahamian citizenship that the constitution already gives to a child born outside The Bahamas to a Bahamian-born father and a non-Bahamian mother.
The second bill seeks to enable a Bahamian woman who marries a foreign man to pass on her Bahamian citizenship to him. However, the bill will still outlaw marriages of convenience. As it stands now, a Bahamian man is able to pass on his citizenship to his foreign wife.
The third bill seeks to reverse the law that prohibits an unwed Bahamian man from passing his citizenship to his child if he or she is born to a foreign woman. It would require proof of paternity.
The final bill seeks to make it unconstitutional for any law or any person acting in the performance of any public office to discriminate based on sex.
Sir Arthur supports the measures.
“I support any legislation, the object of which is to give Bahamian women full equality with men. That has been my position all my life and that is still my position today,” he said.
“If there are any legal defects in the bills then it is not beyond the ingenuity of all those involved, including our very competent Constitutional Commission, to deal with them, but I certainly hope that we will not miss this opportunity to make this right in our constitution.”
He added that success at the polls on November 6, “would finally remove the last vestiges of discrimination against women and that refers to the provisions for citizenship, primarily”.
“That was the outstanding area in which women are discriminated against in our constitution and I would be very, very happy to see the end of that,” he said.
George Smith, who at 30 was the youngest member of the bi-partisan delegation at the conference, said he has no doubt that if the late former Prime Minister Sir Lynden Pindling were alive today he would support the current reform effort.
In his recent series of articles entitled “Constitutional referendum: Correcting an historical error”, former Attorney General Alfred Sears noted that Sir Lynden, at a colloquium on political reform of the constitution at The College of The Bahamas in June 1998, presented a paper entitled “Refining the Revolution”.
Sears recalled Sir Lynden, with the perspective of 25 years of the independent Commonwealth of The Bahamas during most of which he was prime minister, implicitly challenged us to correct this historical error of discriminating against Bahamian women and their children when he posed the following question: “While defining the rights of Bahamian citizens for the 21st century, don’t you think favorable consideration will have to be given to the question as to whether children born outside The Bahamas to Bahamian mothers and foreign fathers should become Bahamian citizens on the same terms as children born outside The Bahamas to foreign mothers and Bahamian fathers?”
Smith told National Review that in 1972, there were many unknowns.
“So we took what was an acceptable thing at the time to pass the citizenship by virtue of the male,” he said.
“All of the people who went to the constitutional talks, with probably one or two exceptions, knew that in time we would have to look at the constitution and give to women that which the constitution was giving to men.
“We knew that, as other countries have advanced, we would advance to that point, and in other areas too, like the state. The state will become a republic eventually. We weren’t exactly unfamiliar with what was happening in other countries of the world.”
Smith added, “That is why I am very comfortable, once they guarantee the retroactive nature of these changes, I am comfortable with what is happening. I don’t think that men who had the knowledge that the founding fathers had and the wisdom that they had could possibly in 2014 have a difficulty with what is happening.”
But Roker told National Review constitutional change should be “a last resort”.
“I’m not saying you should never touch the constitution, but the constitution is supposed to be a sacred document and you only amend that if you have no other choice,” he said.
“I am satisfied that we have something called the Bahamas Nationality Act and I am saying somehow we should look at that and see if we can do what we say we want to do by amending the constitution.
“…If you amend the Bahamas Nationality Act and it turns out you did something wrong with that, it’s easy to fix. You just amend it again. The constitution though cannot be amended like that… Within days after it was presented to the Parliament, somebody came to introduce amendments (to the package of bills) and this thing was going on for so long you would have thought they would have at least had it halfway right.”
The reform process has been subjected to tweaking along the way. It fueled serious contention in the House of Assembly during the recent debate on the bills.
It appears now though that the bills will easily pass through Parliament.
While that will be an important hurdle behind the government and those groups pushing a “yes” vote in the referendum, bringing the public onboard will be a challenge that could prove insurmountable.
In the weeks since the bills were tabled in Parliament, we have heard repeatedly, “I believe in gender equality but…”
The arguments have been endless.
There are suggestions that the bills are “elitist” bills; there are those who still submit that bill number four would lead to same-sex marriages; others fear that allowing a Bahamian woman to pass on citizenship to her foreign husband, and an unwed Bahamian man to pass on citizenship to his child by a foreign woman, would change The Bahamas as we know it today, in ways we would not welcome.
There are also those who argue that the government cannot be trusted to abide by the results of the referendum, despite the fact it is binding; there are still ill feelings associated with the PLP’s campaign against a similar referendum in 2002, and there is a pervasive anti-government sentiment that could end up sinking the referendum.
The public debate thus far has been punctuated with misinformation, fear-mongering and illogical assertions.
These will all be hard to overcome.
August 25, 2014