EDLS’ RESPONSE to PUBLIC LECTURE: “The Law in a Changing Society: Reconstructing Marriage”

It has become apparent since the recent presentation of the 8^th Annual Eugene Dupuch Distinguished Lecture, hosted by the Eugene Dupuch Law School and by Dupuch & Turnquest & Co. Chambers, that much public debate has emerged, related to several aspects of the presentation. As many of your readers will be aware, the featured speaker was the Honourable Dame Anita Allen, DBE, President of the Court of Appeal of the Commonwealth of The Bahamas, and the topic presented by Madam President was “The Law in a Changing Society: Reconstructing Marriage”.

From my own awareness of some of the discussion in the public domain since the presentation of the lecture, its timing and the supposed “personal views” expressed by Madam President seem to be the two most “debated” issues arising.

Permit me to address both of these issues, starting with the latter.

I begin by categorically and thoroughly rejecting as baseless and mischievous, any suggestion that the lecture presented was an expose of any personal view by Madam President, denoting a conclusion of what her judicial determination would be on any matter treating with same-sex marriage in The Bahamas that may arise before her as a sitting Judge. Similarly, I also comprehensively repudiate any attempt to infer that as a result of the lecture delivered, there were grounds for any apprehension of judicial bias on Her Ladyship’s part, relative to the issues raised in her lecture.

Respectfully, what was presented was an erudite, thoughtful, cogent and immersed appraisal of certain aspects of family law in The Bahamas, with an emphasis on the legal institution of marriage. Indeed, in her presentation, Her Ladyship dealt with several jurisprudential matters relating to marriage. Her juristic treatment of the nature of marriage in The Bahamas explored the recognition of non-traditional marriages, the law related to marriages celebrated by persons within the prohibited degrees of consanguinity or affinity,  the issue of ancillary relief to an innocent party where a marriage is declared null and void under section 21(1) (a) of the Matrimonial Causes Act, divorce reform and the  legal status of cohabiting couples particularly in relation to property division upon the breakup of those relationships.

As with any lecture or speech, the core elements were presented in a wider context of social observations, realities, norms and perspectives. This was nothing novel, peculiar or avant-garde to Dame Anita’s lecture.

In the first instance, it is inconceivable that any reasonable person would think that a distinguished jurist of such superior judicial vintage and experience as Madam President would be so careless as to engage in “judicial decision-making”, not from the Bench, but rather from the lectern at such an esteemed and respectable forum as a distinguished lecture. Likewise, for anyone to claim that Her Ladyship did any such thing would have ignored her deliberate and considered approach of positing the various components of her analysis as “arguments”.

The thought that any jurist is condemned to a life of retreat from public discourse and debate on matters of national importance by virtue of his or her appointment is wholly and incontrovertibly inconsistent with the fundamental right of all citizens to freedom of expression. As the Bangalore Principles on Judicial Conduct, 2002 at paragraph 4.6 states – “A judge, like any other citizen, is entitled to freedom of expression, belief, association and assembly…”, so long as the “dignity of the judicial office” is preserved and the “impartiality and independence of the judiciary” is maintained.

Some will recall that in his address at the opening of the legal year on Wednesday 13th January, 2016, the Hon. Chief Justice Sir Hartman Longley expressed the need for a conference on criminal law to “review and make substantial changes to both practice procedure and evidence” and in that regard called for the abolition of the voir dire, the abolition of Preliminary Inquiries and for either the abolition of the jury or limitation of its application to cases where the death penalty might be sought.

Indeed, as the commentary to Rule 3.1 of the American Bar Association Model Code of Judicial Conduct (2011 ed., indicates “…judges are encouraged to engage in appropriate extrajudicial activities. Judges are uniquely qualified to engage in extrajudicial activities that concern the law, the legal system, and the administration of justice, such as by speaking, writing, teaching, or participating in scholarly research projects.”  I respectfully submit that that is a universal tenet of proper judicial public conduct.

A practical application of this was also articulated by Lord Carnwath of the Supreme Court of the United Kingdom approximately 7 months ago while delivering a speech on climate change and the courts, where he said the following in relation to a controversy surrounding his participation in an earlier conference also on climate change:

“There are those who think that this whole debate [climate change] is too political and too controversial for us as judges to make any contribution…I mention [this] partly to underline how easy it is for any intervention by a judge in an area of potential controversy to be misinterpreted…The intention…was not to align ourselves as judges or individuals with any particular “establishment” position, or to “outlaw” any legitimate views one way or the other. Our personal views are of course irrelevant. But as judges we have to live in the real world. In that world it is the political establishment, whether we agree with it or not, which ultimately dictates the laws under which we as judges have to operate…However, whatever they decide, there will be disputes and challenges, which the courts will have to resolve. Judges need to prepare themselves for the task…”

I endorse these views expressed by Lord Carnwath, and expressly deem them as acutely relevant to the controversy arising from Madam President’s lecture as her goal was not to “align” herself with any particular position on the legal issues raised, but rather to comment on a set of apposite legal issues as judges “live in the real world” too .

I would urge all to bear in mind that the occasion was a distinguished lecture in honour and celebration of a national treasure, the Honourable Eugene Dupuch Q.C. As Her Ladyship commented in her introduction at the lecture, he was a “fearless advocate for change, who bejeweled our national life”. In this regard, the distinguished lecture was a most appropriate forum to treat with matters of such national legal importance. The whole purpose of a distinguished lecture, in the context of an institution of higher learning in the law, is to stimulate and invigorate thought, discussion and analysis of some aspect of the law. This clearly does not contemplate a mere recital or tedious review of the law as it stands, but rather to challenge interpretations, deconstruct legal propositions, ventilate inadequacies and shortcomings in the law, and traverse and delineate trajectories for possible reform. All of this is not done with a view to coalescing public opinion towards any particular view or promoting any abiding agenda, but rather to spawn contemplation and discussion.

The fact therefore that a judge intellectualizes on the law in a public forum is not a prima facie indication of bias, but rather a willingness to share with the public and to make a contribution to public discourse, as any other citizen can, under the Constitution. Judicial appointment is not an abrogation of individual liberty to the right of free speech, but rather, an opportunity to serve and build a nation as a guardian of the law. Agreeably, this must be done without bringing the office into disrepute and without undermining the standing and integrity of the rule of law. As a nation however, we must be loathe to ascribe unfounded claims of bias against our judiciary, where the evidence of same is manifestly non-existent.

In the context of Dame Anita’s lecture, at every turn, in relation to the law, she posited potential arguments and never once did Her Ladyship use words of any configuration or permutation that indicated “this is my view if I were to decide”. To that extent, I respectfully submit that any such claim bears no consonance with the truth. In fact, in closing her lecture, Her Ladyship expressly hoped that we were all now aware of “the difficulties inherent in our marriage law, and of the complex issues the courts are likely to face in determining: what is marriage in The Bahamas”. There is absolutely no reason why this would not be a meaningful and helpful thing for a most senior and experienced judge to discuss and state in a public forum.

Turning to the issue of the timing of the lecture, I see no moment in the discussion on this point but I will address it briefly nevertheless.

In late January of this year, the Law School invited Madam President to be the speaker at this year’s Eugene Dupuch distinguished lecture. Her Ladyship kindly agreed. In February, the topic of the lecture was settled between the Law School and Madam President. A date of April 14, 2016, was also agreed in February for delivery of the lecture. Notably, this was prior to the announcement by the Government of The Bahamas that a Constitutional Referendum was to be held on June 7, 2016 on citizenship and gender equality. That announcement was made on Sunday April 10, 2016.

In light of that announcement and having regard to the topic of the lecture, the Law School thought it prudent to reschedule the lecture, particularly to avoid a sitting judge becoming embroiled in any controversy relating to the referendum issues and to avoid any charge of influencing the vote and potential outcome, either way.  Owing to the scheduling of internal matters and obligations at the Law School, including the preparation for examinations by both the staff and students, the date that was convenient to both the Law School’s diary and that of Madam President was June 14, 2016 and was mutually agreed. By then all examinations would have been completed and substantial progress would have been made in the marking of examination scripts and the processing of grades.

The suggestion that there was some hidden agenda in the scheduling of the distinguished lecture is entirely baseless and fallacious. Indeed, I am unclear as to what such a fictional agenda would be. Before the holding of the Constitutional Referendum on June 7, 2016, and before this distinguished lecture, learned Counsel Mr. Frederick Smith, QC and Mr. Wayne Munroe, QC had pointed out publicly that it was arguable that same-sex marriage might be possible under Bahamian law.  The argument remains the same now that the referendum has passed. This is no different from what Madam President said on June, 14, 2016.

In conclusion, I again take this opportunity to thank Madam President on behalf of the Council of Legal Education and the Eugene Dupuch Law School for an intellectually rich, rousing and stimulating distinguished lecture. It was a testament to the intellect and academic gravitas of our esteemed and venerable Bahamian Bench.

Yours sincerely,

Eugene Dupuch Law School

Tonya Bastian Galanis

Principal