Chief Justice: referendum is ‘absolutely absurd’
Chief Justice Ian Kawaley may order the Bermuda Government to change the location of some polling stations in the referendum on same-sex relationships so they are not held on church premises.
Dr Justice Kawaley indicated during a Supreme Court hearing yesterday that though it was “contrary to principle — general principle — to hold a referendum on a subject matter that affects human rights” he was not persuaded by a legal bid to stop the ballot taking place altogether.
But he suggested he would consider a request to prevent voting taking place within churches, since it raised an “issue of unfairness”.
He will deliver his judgment this afternoon.
Advance polling for the referendum for those travelling or undergoing medical procedures on referendum day — June 23 — is due to begin on Tuesday at the Seventh-day Adventist Church Hall on King Street. It will take place on Tuesday, Wednesday and Thursday next week.
Lawyer Gregory Howard, representing the Attorney-General, said if the Chief Justice did make a decision on the location of polling stations it would not be possible to get a notice gazetted today for the advance polling. “The advance polling has been set,” he said.
Yesterday's civil proceedings were brought by the Centre of Justice against the Attorney-General to try to stop the referendum taking place on the grounds that it would breach the Constitution, the Human Rights Act and common law.
The Centre also criticised the use of churches that were openly opposed to same-sex relationships — and where campaign literature urging people to vote no was available — as polling stations.
The Chief Justice said holding a referendum on same-sex relationships broke a “fundamental principle” in relation to human rights, telling Mr Howard: “You are then compounding it by organising the referendum in a hasty way, which, arguably, makes it difficult to have a fair poll. And then, on top of that, you have the vote taking place on premises that are party to the issue.
“It just is absolutely absurd. I don't see how you can seriously seek to defend it.”
Mr Howard replied: “That's a very strong statement. We do contest the issue of fairness. We do contest many of the issues that Your Lordship has made.”
But Dr Justice Kawaley also said there was no “constitutional peg” for the Centre's case and he was not persuaded by its argument that the risk of “undue influence” on voters from church leaders made it impossible for the referendum to take place.
The Centre's lawyer Alex Potts said: “I'm not a fantasist. I detect a sense of judicial antipathy to the merits of some of the arguments.”
His claim that the very act of holding a referendum on same-sex relationships would infringe on the rights of a minority had earlier been refuted by Mr Howard, who said it was “perfectly permissible” to ask the electorate how the Government should recognise same-sex unions.
Mr Howard described the Centre's case as an “attack on a legitimate administrative decision” by the Government to hold a vote on a single issue. Mr Potts claimed the referendum was “an exercise in state-sponsored discrimination”.
“It's not an exercise in information-gathering,” he added.
Two charities applied to be heard as “interested parties” in the application for judicial review: same-sex marriage and civil-union opponents Preserve Marriage and OUTBermuda, which promotes LGBTQ rights.
Delroy Duncan, representing Preserve Marriage, said the proceedings involved a “much vexed question”.
He said: “Same-sex marriage is not something that's culturally or traditionally known in the more Christian traditions of the Caribbean.”
And he insisted his clients, with their strong Christian faith, did not view their opposition to same-sex marriage as discriminatory. “There is a real difference in conceptual approach to this, which is why it has been so fraught in this community,” Mr Duncan said.
He said two churches involved in Preserve Marriage and chosen as polling stations — First Church of God on North Shore and Calvary Gospel Church — had been spoken to by the Parliamentary Registrar and told to remove any campaign or proselytising literature before the polls opened.
Peter Sanderson, for OUTBermuda, said those against same-sex relationships got a “head start” on their campaign because they were the ones who pushed the Government to hold the referendum.
Dr Justice Kawaley asked Mr Howard yesterday why a committee was not formed to ensure the referendum was conducted fairly, as the legislation allows.
The committee, he said, could have considered the date of the poll and where people would vote.
Mr Howard said the date of June 23 was chosen by the Premier, Michael Dunkley, in accordance with the law.
“This is a matter for the executive and a Cabinet decision based on the legislative agenda, based on other factors that are better known to them,” he said.
“We submit it's not a matter for the court to inquire into these sorts of matters. These are matters for the executive.”
The Chief Justice said the timing of the vote, and whether it was prejudicial to those wanting to vote yes, was central to the issue of fairness.
“The other side of the debate seems to have no coherence to it,” Dr Justice Kawaley said of the “yes” side.
But Mr Howard said: “They were on an equal footing, we submit.”
Voters will be asked two questions on June 23: if they are in favour of same-sex marriage and if they are in favour of civil unions. Mr Dunkley has said the result will be non-binding.
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