Monday, July 8, 2013

Constitutional Commission Recommendations - 8 July, 2013

In August 2012, the Prime Minister of The Bahamas appointed a Commission with the following broad mandate: “To conduct a comprehensive review of the Constitution of The Bahamas, and to recommend changes to the Constitution in advance of the 40th anniversary of Independence next year. These changes will require a national referendum to be held in due course so that the will of the people can be determined on the matter.”

The following are a list of recommendations by the Commission issued on the 8th July 2013.

Enactment of the Constitution

The Commission recommends that no change should be made to the method of the enactment of the Constitution at this point, especially having regard to the very limited number of constitutional amendments proposed. So called ‘patriation’ would be of symbolic value only and necessitate a costly (and uncertain) referendum, as the wholesale repeal and reenactment of the Constitution would require the observance of all the entrenchment devices. When the time comes to consider more fundamental changes—what the Commission describes as the metaconstitutional issues—then it would be appropriate to consider the question of enacting a new Constitution.

The Preamble

The Commission recommends that the Preamble be retained in its current form and that no amendments be made to its content at the present time. The Commission considers the preamble to be of “inestimable historical and symbolic value”—to adopt the formulation of the AdderleyTynes Commission—and while nonjusticiable it may currently represent the most indigenous feature of the Constitution. Any perceived deficiencies might be met by the inclusion of directive principles of State.

General Constitutional Features

(a) The Constitution (or alternatively an Act of Parliament) should declare the relationship between international and domestic law, and in particular specify the roles of the Executive and Parliament in relation to the negotiation, signature and ratification of treaties, and their transformation into domestic law. On balance, the Commission feels that an ordinary Act of Parliament might be the preferable option.

The Commission recommends that the existing system of entrenchment of the most important provisions of the Constitution should be retained, except that there should be a uniform parliamentary majority of ¾ plus the referendum for altering any of these provisions. However, the other entrenched provisions that relate to executive or administrative functions need only be secured by a parliamentary majority of ¾ and should not be encumbered by a referendum requirement.

Founding Provisions

(a) The Commission recommends that the supreme law clause, as the basis for the review of the constitutionality of legislation, should be strengthened by providing for a ‘Constitutional Court’ (constituted by the Chief Justice and at least one other justice) to hear complex constitutional questions arising on magisterial references, as well as constitutional questions referred by the Attorney General. This does not require any alteration to the Constitution, but a change to the Supreme Court Act or Rules of Court. There should also be a provision for universal review by the citizen (i.e., on nonBillofRights clauses), subject to persons establishing that they have a sufficient interest to bring the action.

(b) A declaration of the land and sea areas of The Bahamas should be a part of the Constitution, with further details contained in a schedule. That schedule should be amenable to amendment by the GovernorGeneral by Order to take account of any delimitations in maritime boundaries that may be concluded between The Bahamas and neighbouring states.

(c) The principal national symbols and essentials of national identity (coatofarms, national anthem, national flag, pledge of allegiance) should be referred to in the Constitution, and displayed in a schedule to the Constitution.

(d) The Constitution should declare English as the official language of The Bahamas.


(a) The Commission recommends that all of the Articles of the Constitution which provide for the acquisition of citizenship based on birth, descent, or marriage should be recast in genderneutral language (by means of appropriate drafting formulae), with the goal of putting Bahamian men and women on an equal footing with respect to the acquisition and transmission of nationality.

(b) Article 14(1), which erects the common law rule of filius nullius, (child of no father) should be deleted to remove any difference in treatment attributable to the marital status of the parent. This may necessitate a review of other pieces of legislation for constitutional conformity as a result of this amendment.

(c) Bahamian men and women should have the equal ability to transmit citizenship to their foreign spouses under Article 10, except that there should be provisions (preferably in the Nationality and Immigration Acts) to guard against marriages of convenience.

(d) With respect to the position of children born in The Bahamas after Independence neither of whose parents is a Bahamian (Article 7), the Commission recommends that this be the subject of further study, for the reasons set out in the body of the Report. To achieve this, the Commission recommends the appointment of a commission to consider further questions relating to nationality and the basis on which nationality should be acquired by children born in The Bahamas to nonBahamian parents.

(e) Moreover, it would recommend that the principles set out below in the body of the Report (at paragraph 14.51) could guide the approach.

(f) Appropriate amendments should also be included to ensure that those persons born to Bahamians outside The Bahamas as well as persons born to nonBahamians in The Bahamas would not be rendered stateless. The ability of a Bahamian father or mother to transmit their citizenship to their children born overseas should be a right not conditioned on how the parent acquired citizenship. Thus, the proviso to article 8 “…otherwise that by virtue of this Article or Article 3(2) of this Constitution” should be deleted.

(g) Consideration should be to given to deleting the procedural temporal requirement at both Article 7 to apply within 12 months after attaining the age of 18 and in Article 9 to apply after 18 but before 21 to be registered, for the reasons given in the body of the Report. In any event, the appropriate amendment to Article 8 to make it applicable to both men and women would eliminate the need for Article 9.

(h) The situation described under Article 6, which provides for children born in The Bahamas to acquire citizenship if either parent is Bahamian, while not discriminatory on its face, has been interpreted by the courts in a way that discriminates against men. The solution would be to repeal subparagraph 1 of Article 14 (which assimilates the father of a child born out of wedlock to the status of the mother), and therefore the Courts would be required to give full effect to the natural meaning of “either parent” in Article 6 (subject to proof of paternity in the case of men). The Commission recommends the deletion of subparagraph 1 of Article 14.

(i) The position with respect to dual citizenship or nationality should be stated, and in particular persons who are eligible for Bahamian citizenship should not be denied registration simply because they possess another nationality. Renunciation of another citizenship should also not be made a conditionprecedent to the grant of citizenship. However, a register should be retained of Bahamian citizens with dual nationality.

(j) The Minister’s discretion to refuse a request for registration, which under section 16 of The Bahamas Nationality Act is declared to be nonreviewable, should be subject to review by the Courts.

(k) There should also be a statutory, independent Immigration Board or Committee with the responsibility to consider applications for citizenship and asylum requests, and make recommendations. These should be ratified by Cabinet unless there are substantial policy or national security considerations to override the recommendations.

(l) A proviso should be added to Article 7, along the lines suggested below, to exclude any nationality entitlement arising in respect of children born to foreign diplomats serving in The Bahamas: “Provided that a person shall not be entitled to be registered as a citizen of The Bahamas by virtue of this provision if neither of his parents is a citizen of The Bahamas and his mother or father possesses such immunity from suit and legal process as is accorded the envoy of a foreign sovereign power accredited to The Bahamas”

Fundamental Rights

(a) The Commission recommends that the constitutional right to trial by jury when charged with an indictable offence be dis-entrenched, and trial without jury should be available under circumstances prescribed by law.

(b) Consideration should be given to expanding Article 23 to expressly include a reference to freedom of the press and the media.

(c) Article 24, which grants a right of “protection of freedom of assembly and association”, should be expanded to constitutionalize the right to vote in general (and local) elections and referenda.

(d) The Commission recommends that “sex” be included in the definition of “discriminatory” in Article 26(3) as one of the prohibited grounds of discrimination.

(e) As a corollary to the recommendation at 24, the Commission also proposes that an amendment be made to Article 26(4) to provide that no law which makes provisions prohibiting same-sex marriage or which provides for such marriages to be unlawful or void shall be held to be inconsistent with the Constitution.

(f) While it is essential for the protection of human dignity that all vulnerable groups be protected from discrimination, we do not think this necessarily requires expanding the list of grounds of discrimination in Article 26. Such protection could be accomplished effectively by providing for specific, limited protection under ordinary legislation (i.e., the Employment Act, Disabilities (Bill).

(g) Social and economic rights should be acknowledged in the Constitution in a way that does not make them enforceable, but imposes a moral and political obligation on the state to pursue such goals for the general welfare.

(h) Article 29 of the Constitution dealing with declarations of emergency should be amended to amplify the circumstances in which a proclamation should be made and to provide for the geographical limitation of such a declaration.

The Commission also recommends that there should be a procedure, such as that contained under the 1969 Constitution, for an impartial and independent tribunal established by law and presided over by the Chief Justice to review emergency detentions.

(i) An amendment should be made to the Constitution to enable the implementation of the death penalty in appropriate cases, by precluding constitutional challenges based on criteria developed in the case law.

Environmental Rights

(a) The Commission recommends that the Constitution should recognize a right to environmental protection in general terms, although more specific provisions for environmental protection should be left to primary and secondary legislation, such as an Environmental Protection or Management

(b) Further, the Commission is aware that there is a draft Environmental Protection Act, which apparently has been under consideration for several years, and which is specifically intended to address most of the environmental concerns articulated. The Government is urged to take the necessary steps to engage in public consultation on the Bill before introduction in Parliament for debate and eventual enactment, and to treat this as a matter of high priority.

The GovernorGeneral/HeadofState
(a) The Commission does not at this time recommend that there should be any change in the Queen as the Head of State and the Office of GovernorGeneral as the representative of the Queen under a constitutional monarchy. However, the Government should embark on a process of public education to prepare the public for a possible change to a republican form of Government at some point in the future. Should such a change be made, it would require amendments to the Constitution providing for a nonexecutive national President, as HeadofState, to discharge the functions formerly vested in the Governor General, with the Prime Minister and Cabinet continuing to exercise executive powers.

(b) The provision of the Constitution which permits the Chief Justice and the President of the Senate to serve as acting GovernorGeneral should be deleted to avoid potential conflicts of interest. Deputies should be appointed from among eminent citizens or retired parliamentarians to fill any vacancies in this office (as is already provided for in the Constitution).

(c) The Commission does not recommend the appointment of a standing Deputy Governor General, as there has been no indication that the appointment of deputies does not work well in practice. In any event, this would lead to duplication of public officers, with the attendant increase in administrative costs and bureaucracy.

(d) The oath of the GovernorGeneral and those of the Prime Minister and Cabinet Ministers, Judges and other senior officials should be changed to include a declaration of allegiance to the Constitution and people of the Commonwealth of The Bahamas.

(e) To remove all doubt it should be declared that the Governor General (Head of State) shall be a Bahamian citizen.


(a) The Commission does not recommend the abolition of the Senate, as was called for by a number of contributors. On the contrary, the Commission recommends the enlargement of the composition of the Senate and the manner in which senators are appointed to make it a more representative body, while ensuring the Government always maintains the majority necessary to achieve its legislative agenda.

(b) The number of senators should be increased to allow for representation based on geographical considerations and other interests.

(c) With respect to changing the age requirement for the Senate, the Commission recommends that the qualifying age limit of 30 be retained, based on a vote of the majority of the members.

(d) The Commission does not recommend the change of the electoral system to a mixed system of firstpastthe post and proportional representation in the House of Assembly (a mixedmember proportional model (MMP), as the experience of other countries does not indicate any huge democratic dividends over the firstpast thepost system.

(e) The Commission does not recommend that any limitations be placed on the privileges and immunities of members of the House of Assembly and Senate. However, citizens who are the subject of any unwarranted personal attacks should have the right to respond from the Bar of either House.

(f) The Constitution should be amended to create a truly independent Electoral and Boundaries Commission, with constitutional autonomy and protection similar to the other service Commissions, which would replace the Constituencies Commission and assume responsibility for the conduct and regulation of elections. Judges, parliamentarians and public officers should be ineligible for service.

(g) The office currently styled Parliamentary Commissioner should be transformed into a Chief Electoral Officer, who should be ex officio a member of the Commission.

(h) The Commission recommends that Parliament make laws for the establishment, regulation, and funding of political parties, to ensure transparency and accountability, which should also come under the superintendence of the Electoral and Boundaries Commission.

(i) Consideration should be given to the establishment of a mechanism for Members of Parliament to be accountable to their constituents for the performance of their duties and accountable to Parliament with respect to their conduct and personal integrity (the latter extending to senior public servants).
 There should be agencies (such as an Integrity Commission) to investigate and take actions against parliamentarians who clearly fail to perform their duties, or violate the trust and ethics of their office.

(j) The power of the Prime Minister to effectively dissolve Parliament at any time in the run up to general elections should be modified by a procedure which requires that the Prime Minister give at least nine months’ notice before calling a general election.

(k) The Commission does not recommend that the procedure for determining the member who commands the support of the majority of a party in the House (or the majority of those in opposition to the Government) should be codified. This is a matter that should continue to operate as a constitutional convention.

(l) The office of Clerk to Parliament and Deputy Clerk, with responsibility for the Senate, should be established by the Constitution as public offices, independent of the Executive. The Commission also recommends the establishment of the Office of Chief Parliamentary Counsel, responsible for drafting of legislation and advising the Speaker of the House on the rules regarding the enactment of legislation.

Executive Powers

(a) The Commission recommends that there should be a limit on the size of Cabinet, and would suggest that the upper limit should be 15. It also makes the point that it does not seem to be the intention of Article 72(2) that every minister should be a member of the Cabinet although the historical practice in The Bahamas has always been to treat ministers as automatic members of the cabinet.

(b) The Commission recommends the establishment of a number of standing parliamentary committees empowered to have oversight of various aspects of government affairs and to act as a check on the powers of the Executive.

(c) The Commission recommends that the powers of appointment of the Prime Minister be reduced by transferring some of those powers to the GovernorGeneral in his or her own right, or to other permanent commissions whose independence and security of tenure members are already secured by the Constitution.

d) Limits should be placed on the number of MPs and Senators who could be appointed as Parliamentary Secretaries (pursuant to article 81 of the Constitution) and Ministers of State (junior ministers). The potentially overlapping roles of Parliamentary Secretaries and junior ministers should also be clarified. As it stands, there is no constitutional provision which speaks to the appointment of junior ministers.

(e) The Commission does not recommend placing any term limits on the tenure of the Prime Minister.

(f) The Commission supports the recommendation to remove the responsibility for criminal prosecutions from a political Attorney General and transfer it to a Director of Public Prosecutions with constitutional autonomy and independence in respect of prosecutions.  Further, the proposed amendment creating the office of the DPP should be entrenched.

(g) The Commission recommends the creation of the Office of Public Defender. This should be complemented with a suitable legal aid system. Both of these initiatives, however, could be accomplished by ordinary legislation.

(h) The Commission recommends that local government be given constitutional recognition. A specific part of the Chapter on the Executive should set out the system of local government, assign the responsibilities between central and local government, and grant a greater degree of autonomy.


(a) The Commission agrees that the necessary steps should be taken to correct the anomalies in the Court structure with regard to the rebranding of the Supreme Court as the High Court, which along with the Court of Appeal would come under a Supreme Court of Judicature presided over by the Chief Justice as head of the judiciary.

(b) The Commission recommends retaining the existing retirement age for Justices of the Supreme Court and Court of Appeal (respectively 65 and 68) but of making these an optional retirement age and raising the mandatory retirement age to 70 and 72 respectively, with no possibility for extension.

(c) The Commission recommends that both the Chief Justice and President of the Court of Appeal should always be Bahamians (as indeed they presently are).

(d) The Commission recommends that the provisions dealing with the appointment of magistrates should be dealt with in the Constitution under the Chapter on the Judicature. The magistracy should also be given a form of protection of tenure, not the same as superior court judges, but sufficient to achieve a constitutional guarantee of independence.

(e) The Commission does not recommend the abolition of appeals to the Judicial Committee of the Privy Council at this time. But it sees this as an inevitable event that must take place at some determined time in the future in the continuing journey towards full sovereignty.  We must also be cognizant that the imperative for this change might be driven by changes emanating from within the United Kingdom.

(f) The Commission does not recommend the elevation of the Industrial Tribunal into a branch of the Supreme Court. However, administratively, it should be placed under the Judicature and removed from the Department of Labour, and some form of tenure given to the President and Members.

The Public Service

(a) The Commission does not support the establishment of a separate Teaching Service Commission. It recommends instead the enlarging of the Public Service Commission and setting up divisions or sections to deal with specific sectors of the public service (e.g., Teaching Service Section). The specialist Commissions (Judicial and Legal Services Commission, Police Service Commission) should be retained, subject to the suggestion in respect of the Police Service Commission.

(b) The Commission recommends that consideration be given to reconstituting the Police Service Commission into a Security Commission, which will be responsible for the Police (Fire Services) and the Prison Service. This will ease some of the burden on the Public Service Commission and allow it to devote additional resources to categories such as teachers.

(c) The Commission recommends that the Royal Bahamas Defence Force, which is a military organization, continues to be governed by its Act and Regulations for the time being, and remain under the administrative control of the National Security Council.

(d) The Commission recommends the establishment of the Office of Ombudsman, but it is not of the opinion that this Office needs to be a constitutional one and can be created by statute.

(e) The Commission recommends the establishment of the office of Contractor General as a public office, with security of tenure, along the lines of the Auditor General. Such a person would be responsible for overseeing the award of Government contracts and ensuring that public funds are expended fairly and that value is received for money expended.


(a) The independence of the Office of the Auditor General should be strengthened by making provisions for the independent funding of that office out of the Consolidated Fund and for the appointment and control of the staff of the Auditor General’s Office to be vested in the occupier of that office.

(b) The Public Accounts Committee should be elevated to direct Constitutional standing by enshrining that body and its mandate in the Constitution. The Constitution should also declare the relationship of this body with the Auditor General.

(c) Article 136(6) should be amended to provide for the accounts of the Auditor General’s Department to be audited by an independent firm, appointed by the Minister in consultation with the Public Accounts Committee.

(d) The Commission does not recommend including a clause in the Constitution requiring the Government to maintain a balanced budget.

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