Same-sex referendum to go ahead
The referendum on same-sex relationships will go ahead, Chief Justice Ian Kawaley ruled yesterday.
However, the advanced polling station has been switched to Bermuda College from the Seventh-day Adventist Church Hall on King Street.
In a short hearing at Supreme Court, Mr Justice Kawaley turned down an attempt by the Centre for Justice to stop the ballot taking place on June 23. The civil proceedings were brought against the Attorney-General on the grounds that such a referendum would breach the constitution, the Human Rights Act and common law.
But he accepted the Centre's criticism of 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.
His decision was based on an “issue of unfairness”.
Mr Justice Kawaley said during a Supreme Court hearing this week that though it was “contrary to principle — general principle — to hold a referendum on a matter that affects human rights”, he was not convinced by a legal bid to stop the ballot taking place altogether.
Yesterday, he announced an order “quashing the decision of the Parliamentary Registrar to designate six church halls as polling rooms on the grounds that, inter alia, it was unreasonable and/or contrary to and/or implied provisions of the Referendum Act 2012”.
In his judgment, Mr Justice Kawaley spoke on the reasons he refused the application, that the referendum would be void and inoperative for contravening the constitution, the Human Rights Act and/or fundamental common law rights.
He said: “The principle that referendums ought not to be used to obtain mandates for human rights issues is not a legally enforceable principle but rather possesses the status of a constitutional convention.
“It also admits of exceptions, for example, when a constitutional amendment is required to create new rights or modify existing ones. The referendum is not concerned with the existence or scope of rights which are protected by the constitution and which Parliament is not competent to hear.
“Convening a referendum which might result in a diminution or extinction of rights presently enjoyed under the Human Rights Act 1981 through a change in the law is legally permissible.
“Decisions relating to the convening of referendums are matters falling within the province of the executive and legislative branches of Government.”
He went on to say that the court did have powers to ensure a referendum is conducted in a lawful manner but said the applicant failed to demonstrate that it could not be held in a manner which met the minimum requirements of the constitution, the Referendum Act and/or common law.
Advance polling is due to start on Tuesday at Bermuda College following the publication of a notice in the local newspaper.
Voters will be asked two questions in the June 23 referendum: “Are you in favour of same-sex marriage?” and “Are you in favour of civil unions?”
The result of the referendum will be non-binding.