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 meta‐constitutional 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 Adderley‐Tynes Commission—and while non‐justiciable 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 non‐Bill‐of‐Rights 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 Governor‐General 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 (coat‐of‐arms, 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.
Citizenship
(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 gender‐neutral 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 non‐Bahamian 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 non‐Bahamians 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 sub‐paragraph 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 condition‐precedent 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 non‐reviewable, 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
Act.
(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 Governor‐General/Head‐of‐State
(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 Governor‐General 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 non‐executive national President, as Head‐of‐State, 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 Governor‐General 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 Governor‐General 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.
Parliament
(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 first‐past‐the post and
proportional representation in the House of Assembly (a mixed‐member proportional model (MMP), as
the experience of other countries does not indicate any huge democratic
dividends over the first‐past the‐post 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 Governor‐General 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.
Judicature
(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.
Finance
(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.
To review the entire report of the
Constitutional Commission go to our website at: www.halsburylawchambers.com
