Married to the magic of ⅗ths

Voices of a surprising number and stature have taken the Attorney General to task for his “tactical” decision to remove a provision (requiring a 60% margin of votes for passage) originally inserted into the marriage amendment bill, once it reached committee stage in the Senate, when bills are modified. Retaining the “three-fifths” provision would have required Opposition support in providing votes beyond the Government’s 56% majority in the House of Representatives to pass the legislation there later this month.

screen-shot-2017-03-06-at-8-17-21-amMachiavellian, a dangerous precedent, an egregious act of subversion, an assault on the constitution, shocking, belligerent, hasty and autocratic, several of my chattering-class colleagues have importuned. (Save Kevin Baldeosingh, who delighted in the manoeuvre, and said he was now voting PNM.) Hamid Ghany saw it causing a “firestorm of controversy.”

I’m sure most citizens neither noticed, nor care.

Indeed, the unease among those in civil society who’ve pressed both the UNC and PNM governments to amend the marriage laws was why the special majority provision was included in the AG’s bill in the first place. That seemed the disappointingly tactical move—a political tack to either blame the Opposition for the legislation’s failure, or sidestep any courage in human rights leadership, by forcing the Opposition to share the risk.

Politics of that sort were the reason the Children Act five years ago failed to take on these very issues, which until now the Senate’s Independent bench seemed to be the only parliamentarians with the belly to champion, abstaining all when the final bill leaving child marriage intact passed in early 2012. There was this moment in the Senate’s committee phase of that bill, in the wee hours, when another attorney general turned to Opposition Senator Hinds, noting the Independents’ hankerings, and said he wasn’t really minded to alter the bill. Unless the PNM was.

They weren’t; and the current AG, then a Senator, has repeatedly invoked the unfinished business in that Senate session in his legislative campaign on child marriage.

But back to the trampled Constitution. Dr. Ghany’s previous column elucidated in his schoolmasterly way how our Constitution, uniquely in the Commonwealth, adopted the 1960 Canadian Bill of Rights framework. How this translates into legislative practice is that Parliament can routinely enact laws “inconsistent with” the rights enshrined in the Constitution by simply declaring so; which then requires each house pass the legislation with a 60% majority. That amounts to 10% or just three votes more in either house. Votes can come from anywhere: exclusively from Government if it has 25 or more of the 41 House seats; and from just three of the nine Independent senators.

Not all new laws that address rights require supermajorities. And commentators seem to ignore the AG’s words to that effect piloting the marriage bill, and those by lawyers on the Independent Bench in the debate.

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Ultimately, how any legislation alters the balance of constitutional rights is subject to a test of reasonableness and proportionality. If it meets this test is answered only by the courts—whether passed by a 50.01% or a 100% majority. Political cooperation of an Opposition Michael Harris described as “obstreperous in the extreme” in enacting such law is no assurance of its substantive constitutionality. Indeed, the three-fifths legislative provision, intended as added protection, can instead embolden Parliament to enact rights-altering law by supermajority, without regard to proportionality. Commentators’ much-making of the scared three-fifths, and its marriage bill deletion as a reckless move that will lead to costly litigation, misses the point that the Maha Sabha will sue the AG if he changes Hindu marriage law, three-fifths or no three-fifths.

Some Caribbean legal scholars argue our Canadian three-fifths provision—that’s nowhere else in the region—masks the true test of constitutionality and ought, like the savings clause, to go away. It may simply erect another barrier to minorities and unpopular groups getting rights respected by majoritarian legislatures with cowardly politicians.

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Just last year, our politics of morality seemed stubbornly predictable: Politicians in Government would abstain from advancing sexual rights and freedoms, in a public performance of piety or deference to “public opinion.” Out of power to make change, they’d be eloquent about rights. But last month’s performances on both sides of the aisle show sexuality politics now has—Basdeo Panday’s famous 2005 rendering of Machiavelli’s tenet—a morality of its own.

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A PNM AG was championing sexual autonomy. The Opposition was offering up Senate seats to give the patriarchal case for 12-year-old marriages greater voice. A legislative proposal for minor girls’ marriages with parental permission—and the children’s involvement—was tabled. And finally, Kamla cried that rights to family life are being trampled by imperious legislation to ban marriage of minors. I’m unsure what toppled the old order: Vernella’s ugly and Jack’s frontpage may have brought an end to party leaders’ sexual piety, but not their hypocrisy.

What has been drowned out in all this is girls’ rights. To have a say over their own bodies. To be protected. To sexual education and health services. To decide whom to marry. To not be criminalised or punished for sex or pregnancy. And to marry under 18, with judicial supervision and without parental consent. Sadly, all the chatter about other rights and marrying them off pregnant has drowned out a coalition of voices asking parliamentarians for sexual autonomy for adolescents and respect for their evolving capacity.

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