GENDER, INTEGRITY AND JUSTICE IN GRENADIAN CONSTITUTION REFORM
Dr Francis Alexis QC
20 Oct 16
- Regarding the Grenadian Referendum on 24th November, attempts to use wrongfully the call for gender equality are improper. So too are negative insinuations on the integrity of the office of Governor-General. Likewise is the utterly amazing suggestion that the Code of Conduct is not a justice-related matter. These are discussed here.
GENDER EQUALITY NOT FOR SAME-SEX MARRIAGES
- Gender equality proposals in the Human Rights Bill would ensure women and men equal opportunities in education, the professions, employment, promotion and national leadership. The Bill is not for same-sex marriages; this is affirmed by the Commonwealth Secretariat Human Rights Unit in London, and LGBT in Grenada.
SEXUAL ORIENTATION ON ‘SEX’ NOT ‘GENDER’
- Some say that there is a difference between sex and gender, and that the gender equality proposals can help LGBT assert sexual orientation rights. They cite two cases; but those cases do not support them; this is shown next.
- In National Legal Services Authority v Union of India (2014), the India Supreme Court held that trans-genders are entitled equally with males and females to protected human rights; one’s gender identity being decided by oneself psychologically, not by others biologically. The Court, however, did not equate gender equality with same-sex marriages; and indeed did not uphold same-sex marriages.
- The Court, para 59, said that ‘gender’ is one of the ‘distinct components of sex’. So, in any clause prohibiting discrimination based on ‘sex’, the Court, para 56, rejected ‘all forms of gender bias and gender based discrimination’. The Court, then, making ‘gender’ a component of ‘sex’, treated ‘sex’ as wider than ‘gender’. The Court based sexual orientation rights on, other things apart, the right to freedom from discrimination based on ‘sex’, not ‘gender’.
- In Orozco v A-G (2016), the Belize Supreme Court did not uphold same-sex marriages. Also, the Court planted sexual orientation rights in, other things apart, the right to freedom from discrimination based on ‘sex’, not ‘gender’.
- Neither in India nor Belize was the word ‘gender’ used in the relevant provisions. Neither in India nor Belize does ‘gender’ promote same-sex marriages. Both in India and Belize, the foundation of sexual orientation rights is ‘sex’, not ‘gender’. Sex drives gender, not the other way round. Moreover, neither India nor Belize had the restrictive traditional gender male and female binary language of the Grenada provisions.
APPOINTING EBC CHAIRMAN
- Conducting referendums, supervising elections and overseeing voter registration underline democracy. So, the Elections and Boundaries Commission Bill would vest these powers in an independent Elections and Boundaries Commission (‘EBC’). Two members would be selected by the PM, and two by the Opposition Leader (‘OL’).
- The Chairman would be appointed by the G-G ‘in his own deliberate judgment after consultation with such civil society organisations or interests as the Governor-General considers appropriate’. They include community-based organisations, faith-based bodies, NGOs, the private sector, trade unions, youth and women’s organisations. If they do not agree a nomination, restricting the G-G to their differing advices, as distinct from requiring him to consult them, would be impracticable.
- When the G-G has to act ‘in his own deliberate judgment’, he is to act on his own integrity, requisite to such pronounced constitutional responsibility. When the G-G has to act ‘in accordance with the advice of’ someone else as the PM, he has to perform that function as so advised. As the G-G was acting in his own deliberate judgment after the 2013 general election, there being no OL, the G-G was able to appoint as Senators three NDCs, no matter the views of the victorious NNP.
CODE OF CONDUCT
- The Code of Conduct in the CCJ BILL would fight corruption by, eg, rejecting the use of public office for private gain. The Code would rightly apply to officers of the state, generally, including the OL, the PM, and even the G-G.
- Also, corruption, by wrongfully siphoning off to private gain, assets which should be used for enhancement of the nation, unjustly damages national development. Corruption is, therefore, a grave injustice to society, a direct affront to justice. Indeed, in Marin v A-G (2011), the CCJ ruled that malfeasance in public office, corruption, may be attacked in court, not only criminally, but also civilly—where it is easier to prove. Justice holds to account those with responsibility. The Code is, therefore, very much a justice-related matter.
- With there being different Bills, voters have choices. A voter may vote on as many of the seven bills as he or she chooses. A voter may approve some Bills, but disapprove others. The referendum is not a partisan political exercise, it requires voting to decide which Bills best promote the national interest. So voting on the Bills should be with a patriotic conscience.