Considering roles of the Judiciary and Parliament
It is a well-known maxim that Parliament makes the law; the judge merely interprets it. But, what effect, if any, does that have on our community?
Today, I invite readers to consider both: 1, the role of the judge, interpreting legislation that has been passed by Parliament; and 2, the role of Parliament, enacting legislation that governs our community.
On February 3, 2015, in Bermuda’s Supreme Court, Mr Justice Hellman handed down a decision that resounded in the media: “Adoption Hope for Same-sex Couples” and was echoed by an opinion written by my learned friend, Peter Sanderson, of Wakefield Quin Limited: “Adoption Case a Step in the Right Direction”.
In his decision, Mr Justice Hellman considered the Human Rights Act 1981 (the “Act”). Specifically, he considered the definition of discrimination, as defined under Section 2(2)(b) of the Act, and had to interpret what the language was actually saying. It is worth mentioning that the language of Section 2(2)(b) is not at all clear.
However, after much revision of the section, I respectfully agree with his interpretation in so far as the mischief against which Section 2(2)(b) must have been drafted.
Mr Justice Hellman’s interpretation of Section 2(2)(b) is that an avenue for indirect discrimination is created in respect of groups of minorities within the community. While the decision of Hellman J was with respect to an unmarried same-sex couple, it opens the door to arguments for all of the other descriptions listed in the section — race, religion, gender, colour and ethnicity, just to name a few.
Consequently, questions that the author has are: 1, Is the indirect discrimination, apparent in the case of unmarried same-sex couples, evident in other areas of law; 2, Would the majority of the public take the view that a gay couple should be allowed to adopt; and 3, Does the creation of avenues in respect of indirect discrimination flout the democracy (ie, majority rule) inherent within a parliamentary system?
Essentially, in a parliamentary system, the legislation enacted is supposed to reflect the ideologies of the electorate majority. Section 2(2)(b) identifies specific traits of individuals and classifies them into groups, which, in some cases, comprise a minority within the community. The interpretation of Section 2(2)(b) shows that there is an avenue for indirect discrimination.
However, does it also, therefore, create an avenue for those minorities to circumvent the will of the majority? Of course, all peoples’ rights need to be safeguarded; and, the law aspires to do that. But, have our legislators become so sensitive to the idea of oppression toward minorities that they ignore the constitutional democracy on which Bermuda was built?
In the instant case, in addition to Section 2(2)(b) of the Human Rights Act, Hellman J also considered Section 28 (1) of the Adoption Act 2006 (“Section 28”), which, essentially, provides that joint applications can be made only by married couples.
Under Bermuda law, it is believed that same-sex couples cannot be wed, nor can their marriage be recognised (should they be married elsewhere).
Therefore, even though both individuals wanted to be guardians, it was believed that owing to the Bermuda marriage laws, they could not marry and be able to make a joint application for adoption. Hence, reading Section 28 together with Section 2(2)(b), Hellman J concluded that there was indirect discrimination suffered by the parties.
However, interestingly, in discussing this case with J Audley Quallo, it was noted that the Marriage Act 1944 does not expressly state that a marriage shall occur only between a male and female; although the language in certain sections has that implication.
One of the sections which imply that marriage shall be between a man and woman does so in the form of a script, which may or may not be used during the wedding ceremony, depending on whether the parties have their own script. Further, it is likely that at the time that the Marriage Act was drafted, the script only contemplated a man and woman because, in 1944, it was highly improbable that two persons of the same sex would tender their information for the purpose of being wed.
Now that England has allowed unions between same-sex couples, and the Bermuda Government has recently amended the Human Rights Act 1981 to include sexual orientation under the definition of discrimination, given that the Marriage Act 1944 does not expressly exclude it, one might make the argument that equal rights may turn to the conferral of same-sex marriage.
The law, and the nature of our Commonwealth system, is alive; ever growing and evolving with time.
Accordingly, as we change, so, too, must the laws that govern us.
However, when does the view of the majority prevail over the view of the minority, if ever? And, whose job is it to protect the view of the majority, if it needs protecting: is it Parliament or is it the Judiciary?
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