Bermuda should broaden protections against discrimination should the Island opt for independence, said constitutional law expert and Puisne Judge Ian Kawaley.

In last week?s lecture at the Bermuda College, Mr. Justice Kawaley began his discussion of an Independence Constitution by noting Britain?s ?inflexible position? that no major constitutional reform short of independence will be considered.

?It has been suggested that this inflexible position may contravene the right of the peoples of dependent territories under international law to freely determine their status,? he said.

He then went on to say that the Constitution of an Independent Bermuda should be similar to the present Constitution ? in the interests of ?maximum stability and continuity? ? but ?innovations? in the South African Constitution should be considered.

?It would, therefore, prohibit discrimination on the grounds of ?race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth?. At present only discrimination on grounds of race, place of origin, political opinions, colour or creed is constitutionally prohibited.?

Earlier during his lecture, Mr. Justice Kawaley had pointed to the absence of a specific prohibition against gender discrimination as a ?glaring deficiency? of Bermuda?s Constitution.

?As the position now stands, gender discrimination may still be lawfully practised by Parliament, and various categories of public officials (outside the areas of employment and premises protected by the Human Rights Act),? he said.

He added that the country could also benefit from a clause establishing the right to a safe environment ? also found in the Constitutions of South Africa and the Seychelles.

?As far as the rest of the Constitution is concerned, the Queen would remain our Head of State represented in Bermuda by a Governor General who would be appointed (as in the days of the Bermuda Company) by our own parliament,? he continued.

?The right of appeal to the Privy Council (or its successor) would be constitutionally protected so that a constitutional amendment would be required to remove this judicial connection on which our international business community currently depends.

?Special majorities of the House would be required for all constitutional amendments, with referendums required for major changes such as becoming a republic.?

Mr. Justice Kawaley?s paper reviewed Bermuda?s constitutional development throughout the Island?s history and stressed that an understanding of that history was vital to understanding present and future constitutional arrangements.

?Irrespective of whether Independence is pursued, we can draw on a strong constitutional legacy of adhering to the rule of law, of exercising judicial functions in a way which respects the rights of political minorities, and pursuing constitutional change in an orderly manner,? he said.

But ?we must ensure that law and order crises do not panic us into diluting the quality of justice to which persons accused of even serious crimes are entitled. We must not forget that fundamental rights are for the protection of us all.?

He added that ?the historically-driven tendency of using public powers for narrow group interests and permitting personalities to obscure principles? must be resisted by the Island?s ?constitutional actors?.

?We must, in other words, not use the necessarily incomplete letter of the law as an excuse to ride roughshod over the spirit of the Constitution. We must strive to cultivate good rather than bad constitutional habits.?

He noted that the international financial sector plays an important role in future constitutional development.

?Future historians may come to regard the current period as evidence of Bermudians? greatest genius ? moving away from one of the most exploitative economic and social systems known to man and developing into an international economic hub the gravitational pull of which attracts human development in its wake ...

?This is not to say that there may be a clear and present danger that the version of globalisation that we are embracing could, potentially, destroy aspects of our heritage that we would prefer to preserve,? he added.

?Whither the fates carry Bermuda in an increasingly international world will probably, as has been the case since almost the beginning of local time, depend as much on choices made in Bermuda by Bermudians, as on the outside world. Whether Bermuda is ?conquered? by ?international forces? or forms a healthy alliance with them may ultimately depend on whether, as a country, Bermuda decides to lie back and think of England or, alternatively, to stand up and think of Bermuda, as we appear to have consistently done in the past.?