Arguing For ‘Simple Legislation’ Instead of Amending The Constitution
The foolery that has become the Constitutional Referendum debate in Parliament thus far can be boiled down to a truth relevant Parliamentarians would no doubt deny. There are Parliamentarians (and persons outside of Parliament) on both the PLP and FNM sides who want a particular outcome in this process for political reasons. Politics is what is driving such persons on both sides moreso than anything else. For them, it is not so much about the importance or priority of entrenching equality in the Constitution, as it is about what they think they stand to gain or lose politically based on the outcome of this process.
At the last House sitting, the Opposition’s Leader told the country that his side no longer supported any of the current Bills, opposing Bills #1 and #4 as written, and in the case of Bills #2 and #3, saying a referendum is not needed. What that means, is his position is that the discriminatory Articles up for change or deletion in those two Bills should remain as they are, as it would require a referendum to change or delete them.
Since he no longer supports a referendum on these Articles, that means he does not want the discriminatory Articles to be changed or deleted, but to remain entrenched. He said instead, that we can give Bahamian women and men the abilities arising from these two Bills by legislation – a total departure ironically, from both the Constitutional amendments presented and unanimously passed in the House and Senate by his own Party’s administration back in 2002, as well as a departure from the actual purpose of the referendum exercise itself – which for the first three Bills, is to entrench equality in the Constitution between Bahamian men and women with respect to citizenship rights for their children and spouses.
As a matter of logic, it is also curious that the Opposition Leader holds this “simple legislation” view about Bill#2 and #3 but not about Bill#1, even though all three of those Bills propose to do the same thing – change or delete discriminatory Articles of the Constitution.
Bill#2 deals with proposed entrenched citizenship rights for Bahamian women and their spouses and Bill#3 deals with entrenched citizenship rights for Bahamian men and their out-of-wedlock children. Article 13 of the Constitution permits Parliament to pass simple legislation (legislation enacted by House and Senate alone) regarding citizenship for persons who do not become citizens via any of the Constitution’s other Articles, but Article 13 does not stop Parliament from discriminating or making that simple legislation discriminatory if it so chooses.
So simple legislation by itself still does not guarantee against unequal rights between Bahamian men and Bahamian women or even against creating inequalities between some Bahamian men over other Bahamian men or some Bahamian women over other Bahamian women. Changes to the Constitution like the ones proposed in Bills #1, #2 and #3 would guarantee against such discrimination via simple legislation through Article 13.
The problem with the “leave the discriminatory Articles alone and just pass simple legislation” argument in general is this: if Parliament can pass a law, it can repeal or change a law. Which means for example, if today a Party in power passes a law regarding citizenship, the next government can come in and decide it doesn’t agree with that law, and change or get rid of it – hence leaving something as critical as your citizenship rights ultimately at the mercy and discretion of the politician/political Party of the day. That is the salient point about the “just pass simple legislation” argument that has not yet been publicly hashed out.
There are some rights that our nation should deem fundamental and have entrenched, so that no government or politician can come in and change them by a simple Act of Parliament or policy. That is what the Constitution is for, to declare as Supreme Law that no matter what a government may feel about you or a situation, there are certain rights you have that are entrenched, so that it cannot Constitutionally take or keep those rights from you because it may feel like doing so or deem it politically expedient to do so.
Those who have no problem with these discriminatory Articles remaining in the Constitution on citizenship rights for Bahamians should ask themselves why. Why do they want our Supreme Law to continue to keep inequality on these matters, entrenched? Citizenship rights are already entrenched for some Bahamians, primarily Bahamian men. Why propose that these rights do not need to be entrenched for all Bahamians, whether they are male or female? Is a Bahamian man more Bahamian than a Bahamian woman simply because he is a man, or vice versa? No.
As for Bill#4 (adding “sex” to Article 26 as it already exists in Article 15), in the context of giving thoroughly informed thought to how best to approach this process, it is debatable whether this amendment should have been brought in tandem with the citizenship amendments proposed in Bills #1, #2 and #3. Indeed, it is debatable whether Article 26 even needs to be amended in this way at all, since we already have protection based on our “sex” (being male or female) in Article 15. And newly proposed changes to Bill #4 will not prevent legal challenges to our marriage laws; challenges that actually can be filed right now, without Article 26 even being touched. The government has lost control of the narrative on this Bill and as such, would probably serve the process best by withdrawing Bill #4, and focusing at this time on the Constitutional entrenchment of equal citizenship rights for Bahamian women and men via the other three Bills.
There is enough lack of education, misogyny and xenophobia in our population as it is. Parliamentarians on both sides need to stop playing self-serving political games that only further exacerbate these problems in our population. It is a disgrace that in 2014, a Parliamentarian would argue against the entrenchment of equal citizenship rights for Bahamians in our Supreme Law.
If these men were true leaders, they would support the entrenchment of equality in our Constitution for Bahamians instead of opposing it, or otherwise pulling other stunts that are likely to adversely impact how Bahamians vote on these matters yet again – if the vote even gets that far this time at all.