Referendum would breach Constitution — lawyer
This month's referendum could lead to a constitutional crisis if the majority of ballots are against same-sex marriage and civil unions, a court heard yesterday.
With less than a week to go before early polling on the June 23 referendum begins, the Centre for Justice argued at a Supreme Court hearing that the single-issue vote would breach the Constitution, the Human Rights Act and common law.
The Centre's lawyer Alex Potts also claimed before Chief Justice Ian Kawaley that a negative result could lead to Britain's intervention to make Bermuda comply with international human rights law.
But Gregory Howard, representing the Attorney-General, said the Centre's application for judicial review of the referendum was “premature”.
He said it was “perfectly permissible” to ask the people of Bermuda “what sort of recognition” should be given to same-sex relationships by asking them if they were in favour of same-sex marriage and if they were in favour of civil unions.
The civil proceedings taking place this week have been brought against the AG by the Centre for Justice, an organisation which promotes human rights, civil liberties and the rule of law.
Two charities have also applied to be heard as “interested parties”: same-sex marriage and civil union opponents Preserve Marriage and OUTBermuda, which promotes LGBTQ rights.
Mr Potts said the Bermuda Government had repeatedly stated in recent months its obligation under international law to recognise same-sex relationships and the same view was expressed in the Chief Justice's own landmark Bermuda Bred court ruling last year, which concerned the immigration rights of same-sex partners of Bermudians.
But he said the Government would be “paralysed in its ability to do what is right” if the referendum showed the majority of the public were against recognising same-sex relationships.
“What would happen here is, essentially, a constitutional crisis,” he said, adding that either the Centre or OUTBermuda would have to appeal the issue all the way to the European Court of Human Rights in Strasbourg.
He said the UK had already legislated for same-sex marriage because it believed it was a human right and may intervene to make Bermuda, a British Overseas Territory, follow suit.
The Centre's legal bid to challenge the Act of Parliament which has paved the way for the referendum to be held — the Referendum (Same-Sex Relationships) Act 2016 — was “unprecedented”, said Mr Potts, but that did not mean it was without merit.
He argued that the Government decided to hold the vote after pressure from religious lobbyists because it realised it would be “politically expedient” to do so.
But even posing the questions infringed the rights of a minority, he said, adding that the country had a Premier who was “paying lip service to the idea that his government supports human rights”.
Describing the two questions on the ballot paper as suffering from a “complete lack of definition”, Mr Potts said the referendum would confuse voters and would not give them a “proper opportunity to voice their feelings, concerns [and] opinions” on the topic.
And he said having polling stations based in churches which are openly opposed to same-sex relationships — where pamphlets urging people to “vote no twice” were available — was “an example of undue influence”.
“It's all been rushed through without scrutiny or reflection,” he claimed.
Mr Howard said a reasonably well-informed person would have “no doubt” about what the questions meant. He added that the referendum result was non-binding.
“Although in broad brushstrokes the referendum raises issues of fundamental rights, [the questions] only obliquely touch the fundamental rights themselves. The legislature is competent and can comply with its international requirements.”
Peter Sanderson, for OUTBermuda, complained that Bermuda's LGBTQ community was not consulted over whether a referendum should be held, yet Preserve Marriage made presentations on the matter to Cabinet.
“One side is clearly getting their audience,” he claimed, adding that Preserve Marriage got a head start on its referendum campaign, while the “other side” — a “small minority of the population” — had very little time to fundraise and organise.
Mr Howard's submissions are expected to continue when the hearing resumes today, followed by Delroy Duncan, representing Preserve Marriage.