Dear Sir,

Following up on my previous letter of December 10, titled “Leave notion of marriage to society”, where I made the point that Chief Justice Ian Kawaley’s ruling could give one the impression that persons’ rights as asserted by the Human Rights Act is higher than the Bermuda Constitution, I had a number of persons who questioned me and even denied how or where was it the case in the Chief Justice’s ruling that the constitution in its written form can be seen as being overruled by the Human Rights Act.

The Chief Justice’s ruling was a broader interpretation underscoring the repugnance of the written constitution where it conflicts with the European Convention or any other evolution of social justice; essentially saying the constitution is fluid and can be subjected to additions and revisions as societal needs arise.

For those who are avid students of law, section 12 of the Bermuda Constitution as written defines discrimination as following:

1, Protection from discrimination on the grounds of race, etc

2, Subject to the provisions of subsections 6, 8 and 9 of this section, no person shall be treated in a discriminatory manner by any person acting by virtue of any written law or in the performance of the functions of any public office or any public authority

3, In this section, the expression “discriminatory” means affording different treatment to different persons attributable wholly or mainly to their respective descriptions by race, place of origin, political opinions, colour or creed whereby persons of one such description are subjected to disabilities or restrictions to which persons of another such description are not made subject or are accorded privileges or advantages which are not accorded to persons of another such description

Note that there is no reference to sex or orientation.

For further and more specific explanation, subsection 4 clause (c) makes reference to where the above constitutional description of discrimination may apply to marriage:

4 (c) ... in the case of persons of any such description as is mentioned in subsection (3) of this section (or of persons connected with such persons) of the law with respect to adoption, marriage, divorce, burial, devolution of property on death or other like matters that is the personal law applicable to persons of that description ...

Section 12 clause 2 gives the role that the Registrar-General has under the constitution and clause 3 defines the limits to whom it applies.

It is for the aforementioned reason I assert that the constitutional route is inappropriate to satisfy the issue of same-sex marriage unless reinterpreted.

Using the Human Rights Act as the lever has the effect of amending or breathing new life into the constitution, clearly giving the Human Rights Act primacy over the written constitu- tion.

Dr Justice Kawaley’s ruling relied heavily on section 28 of the Human Rights Act, which states: “For the avoidance of doubt it is hereby declared that the provisions of this Act are in addition to and not in derogation of part 1 of the Constitution”.

KHALID WASI