Constitutional reform - pt. 11... ...The supreme law clause of the constitution should be strengthened in the following ways: ...(a) by granting to the courts the power to review legislation to ensure consistency with the constitution... ...(b) by conferring legal standing to citizens of The Bahamas, in their own interest ...or as part of an association or interest group ...to initiate a constitutional challenge with respect to the validity of any legislation that they consider to be inconsistent with the constitution

Constitutional reform pt. 11

By ALFRED SEARS

Chapter one of the constitution states that the constitution is the supreme law of The Bahamas in the following terms: “This Constitution is the supreme law of the Commonwealth of The Bahamas and, subject to the provision of this constitution, if any other law is inconsistent with this constitution, this constitution, shall prevail and the other law shall, to the extent of the inconsistency, be void.”

In a political culture where the political directorate is perceived to be the highest law of the land, it is the constitution which is the supreme law and should any other law be inconsistent, that other law would be declared null and void and of no effect.  The prime minister, the Cabinet and Parliament are subject to the constitution and any executive action which contravenes a provision of the Constitution can be declared to be null and void and of no effect by the Supreme Court.

The Supreme Court, the Court of Appeal or the Judicial Committee of the Privy Council, through the power of judicial review, can examine any law passed by the Parliament or any action by the executive branch of government to determine whether it is consistent with the constitution.  If it were found that a law or an action by the executive branch is inconsistent with the constitution, the court can declare it unconstitutional and award a remedy to the aggrieved person.

A case

The supremacy of the constitution was dramatically affirmed in the case D’Arcy Ryan v. Attorney General (1977).  In this case, Ryan had applied to become a citizen of The Bahamas on October 24, 1974, pursuant to Article 5 of the constitution.  Ryan had been living in The Bahamas as his primary residence from 1947 and received belonger status in 1966.  He was married to a citizen of The Bahamas and all of his seven children of the marriage had been born in The Bahamas.  Ryan was informed on June 16, 1975 that the minister of home affairs had refused his application.  The minister gave no reason for his refusal of the application.  Ryan instituted legal proceedings in the Supreme Court seeking a declaration that upon the true construction of the constitution he was entitled to be registered as a citizen of The Bahamas and that section seven of the Bahamas Nationality Act, 1973 and was ultra vires the constitution.  Two justices, sitting as a division of the Supreme Court, held that the purported decision of the minister was a nullity and referred the matter back to the minister to be reconsidered in accordance to law.  The attorney general appealed the decision of the Supreme Court to the Court of Appeal.  The Court of Appeal held that section seven (a) – (e) of the Bahamas Nationality Act was not ultra vires, but that the proviso thereto was ultra vires the constitution, as it did not prescribe any ground on which the minister could base his refusal.  The Court of Appeal found that the minister’s refusal to grant Ryan’s application for citizenship was therefore a nullity.  The attorney general appealed the decision of the Court of Appeal to the Privy Council.  Lord Diplock, writing for the Privy Council in 1979, held that: “Their Lordships accordingly propose humbly to advise Her Majesty that for the single declaration made by the Court of Appeal, the following declarations as to the several questions of law that have been raised by these proceedings should be made:

(1) A declaration that the minister’s decision of 28 May 1975 to refuse the plaintiff’s application dated 27 June 1974 for registration as a citizen of The Bahamas is null and void.

(2) A declaration that the final words of the proviso to section seven of The Bahamas Nationality Act, 1973, viz: ‘or if for any other sufficient reason of public policy he is satisfied that it is not conducive to the public good that the applicant should become a citizen of The Bahamas’ are inconsistent with the Constitution of the Commonwealth of The Bahamas and are void.

(3) A declaration that the plaintiff is entitled to have his application for registration as a citizen of The Bahamas dated 27 June 1974 reconsidered by the minister according to law, as it has been stated in their lordships’ reasons for their humble advice to her majesty in this appeal.”

The Ryan case demonstrates that the court, if inconsistent with the constitution, can declare ministerial decisions, null and void.

Notwithstanding the clear direction by the Privy Council in 1979 that Ryan should be given Bahamian citizenship as a matter of constitutional entitlement, the government did not issue Ryan a Bahamian passport until 1993.  This case illustrates the need for citizens in a democratic society to be vigilant to ensure that the guarantees enshrined in the constitution are in fact observed by the state.

Recommendation

The supreme law clause of the constitution should be strengthened in the following ways:

(a) by granting to the courts the power to review legislation to ensure consistency with the constitution;

(b) by conferring legal standing to citizens of The Bahamas, in their own interest, or as part of an association or interest group, to initiate a constitutional challenge with respect to the validity of any legislation that they consider to be inconsistent with the constitution.

• Alfred Sears is an attorney, a former member of Parliament and a former attorney general of The Bahamas.

Nov 01, 2012

thenassauguardian

Caribbean Blog International

Constitutional reform - pt. 10... ...The government should commission The College of the Bahamas and the Eugene Dupuch Law School to conduct a scientific study to determine the comparative deterrence between the death penalty and life imprisonment ...to inform public education and policy on the issue of the death penalty... ...

"Thank God for the Privy Council!"... It is "thank God for the Privy Council" that gives our courts an aura of stability and is an added attraction for The Bahamas as a commercial centre

A case for keeping the Privy Council

tribune242 editorial


CRIME IS out of control. All of us are concerned, and naturally everyone wants a quick solution to something that has been a growing sickness for many years. As with all growing sicknesses, there is no quick fix.

Sir Etienne Dupuch died 19 years ago, having stopped writing this column about four years before his death. But for years before that he was warning the Bahamian people that unless something were done to reverse our social decay as far as crime was concerned the Bahamas was on a downward path in Jamaica's shadow. What we are complaining about today, he predicted in this column way back then.

Solutions are needed, but they can't be found in an atmosphere of hysteria. What has to be faced is that society as a whole is to blame - either by active participation, or by ignoring the signs in an attempt to insulate itself against the threatening storm. Only a united society can now overcome our problems.

This week a group of pastors got together to express their concern about crime, especially "about the spiralling, out of control murder rate."

They blame government for not doing what is legally necessary to carry out capital punishment in cases of those convicted of murder. They believe that "former and current governments" have failed the country by allowing the Privy Council to "force its 2006 interpretation of our constitution on us" and continuing to govern as if nothing can be done about it. In short they want the return of capital punishment, and the disappearance of the Privy Council.

What most people do not appreciate is that - as one lawyer pointed out -- when the Privy Council had the opportunity to rule that capital punishment was unconstitutional, it did not do so. However, what it did rule unconstitutional was that hanging was the mandatory sentence on a murder conviction. In other words there were no degrees of culpability for the crime. It was felt that instead of the mandatory sentence, the presiding judge should consider each case on its own merits and decide which warranted death and which a lesser sentence.

In other words it left us with capital punishment still on our statute books, but it forced the courts to put more thought into how the sentence was to be administered. It is now up to our legislators to craft legislation that makes it clear what types of murders would warrant the noose.

But we have to face the fact that capital punishment in this world is seeing its last days. Even in America, one of the last bastions of the death penalty, discussions are now underway about its abolition. Consciences are being pricked in the knowledge that many innocents have been condemned to death by contaminated evidence and faulty judgments.

Many Bahamians are calling for the Bahamas to cut all ties with the Privy Council so that our penal system can again start to "hang 'em high." This of itself would be a capital blunder - it would remove the most important plank that makes the Bahamas attractive as a commercial centre. Many international businesses would not locate here if our courts did not have the added attraction of the Privy Council as the final court of appeal.

As one international businessman - despairing of his litigation in our court system - commented: "Thank God for the Privy Council!"

It is "thank God for the Privy Council" that gives our courts an aura of stability and is an added attraction for the Bahamas as a commercial centre.

Without the Privy Council as our final and truly independent high court, where would we turn? The Bahamas certainly could neither afford nor mann a local high court with Bahamians. And who can guarantee that a panel of Caribbean judges at the Caribbean court would not rule in the same manner as the Privy Council law Lords in London when it comes to capital cases? Many of them are even now debating the abolition of capital punishment. And so, even with a regional court there is no guarantee that the Bahamas will be able to hang 'em high. That is why we believe that the only way to keep the dangerous murderer away from society is to have a life sentence that truly lasts to the end of the convict's natural life.

But even so the death penalty will continue to haunt the Bahamas. Through the FTA many trade agreements have social justice clauses to protect children, workers and many other groups. Many European countries will not enter into agreements with a country that imposes the death penalty.
Some years ago we wrote in this column about a European ambassador who was paying us a courtesy call. At that time capital punishment was very much an issue. He wanted to know when the Bahamas was going to abandon capital punishment. When we told him of the feelings of the Bahamian people, his comment was that the European organisation to which his country was a member would force the issue -- the Bahamas would no longer qualify for loans.

And so for those who want to be rid of the Privy Council so that they can hang their criminals, they would be advised to think long and hard. They will be denying this country one of its most valuable assets, the upkeep of which costs us nothing, in exchange for what? Certainly no guarantee that we shall be able to tie the hangman's noose around the neck of some unfortunate wretch.

September 27, 2011

tribune242 editorial

Caribbean Blog International

Bahamian Courts need better administration

Courts need better administration
tribune242 editorial:


A RETIRED police officer is concerned that no matter how many judges are brought in to strengthen the Bench, nor how many court buildings are constructed or renovated in which more cases can be heard, nothing is going to reduce the court's logjam until the judicial system is better administered.

Prime Minister Hubert Ingraham himself recognises this. In his budget address to the House in which he outlined government's proposals to improve the system, he acknowledged that "notwithstanding efforts made in the past we have not been nearly as effective as The Bahamas deserves in the administration of the judicial and legal system."

A new director of public prosecutions is arriving in August to take up the post with two persons already in the Attorney General's office elevated to the positions of deputy prosecutors. Mr Ingraham said that there has been "a serious problem with the management of criminal cases -- a problem of untold magnitude."

That problem is reflected in the community causing Police Commissioner Ellison Greenslade to acknowledge that on the crime scene today most victims and those committing murders have previously been arrested and charged in connection with other serious crimes. Often, said the Commissioner, they have been arraigned in a Magistrate's court on charges of murder, or illegal firearms, drug possession, armed robbery or other violent crimes and released on bail.

Once they have been freed they return to their communities and continue committing crimes, allowing violence to permeate the neighbourhoods, he said. In other words the revolving door syndrome has suffocated our courts, because cases are not being dealt with efficiently. The root cause? Adjournments.

Mr Paul Thompson, retired deputy commissioner of police, said that recently a person accused of a minor offence wanted to visit Miami, but a court date was interfering with his plans. His lawyer told him not to worry, to go ahead as he would arrange an adjournment.

"That," said Mr Thompson, "would have never happened under Magistrate Wilton Hercules. In the old days you had to appear in person before the magistrate and request an adjournment." Magistrate Hercules, feared by the criminal class, would have probably refused the request -- particularly if it was frivolous. He would have proceeded with the case. No one did foolishness in his court, and everything moved on time. But today there is adjournment after adjournment -- many stretching into years -- is the order of the day. No wonder the cases are stacking up and gathering dust and witnesses are either losing their memories or disappearing.

Another problem, said Mr Thompson, is that an accused person has a constitutional right to choose his own lawyer. Suppose, said Mr Thompson, you have a hundred accused asking for the same lawyer, then immediately cases start backing up until the overbooked lawyer is available to take each case in turn. This, said Mr Thompson, is a major problem that has to be solved if the court calendar is to move smoothly.

Mr Thompson referred to a case that was due in court on Wednesday for final judgment. The case involved the possession of 2,500 rounds of ammunition, hidden in baby clothing. It was discovered by Customs when it arrived by boat at Kelly's dock in early 2008. For two years there was adjournment after adjournment. On Wednesday -- which was supposed to be the final day -- the case was again adjourned, this time to September 16.

"Imagine," exclaimed Mr Thompson, "a simple case of possession that should have taken the court an half hour to an hour has now taken two years and is not yet finished!"

Another case in which he was interested was also set down for Wednesday. It was a case of the arrest of a sole occupant of a car that contained several guns -- Ruger, Remington and Maverick - and several rounds of ammunition. That arrest was made on October 23, 2006 -- nearly four years ago. It was set down for hearing on the prosecutor's list for this Wednesday. However, when Mr Thompson arrived at court on Wednesday, he was told that it was not on the prosecutor's list for that day or any other day for that matter. So what has happened? Is it just going to slide over the edge and get lost?

Mr Thompson named many other simple cases that should have occupied very little time on the calendar, yet they have been dragged over the years. While he was at the court on Wednesday a case for firearm possession came up. "It was a simple possession case," said Mr Thompson, "where only three police witness were needed -- the two officers to tell the magistrate what they found and a third officer from the Armoury to testify that the firearm being held was listed under the Firearms Act. Yet this case was adjourned to March next year."

On Monday we shall tell how this problem was nipped in the bud in 1980 when no-show witnesses -- particularly police officers -- never turned up to give evidence.

When Pericles Maillis acted for a time as magistrate he issued a warrant for the immediate arrest of a police constable who had not shown up to give his testimony. The constable, brought to court under arrest, was made to wait in the prisoner's dock until the case was called. He complained of being "embarrassed."

If this non-appearance continues, said Mr Maillis at the time, there "is going to be a breakdown in law and order in the Bahamas."

And that is exactly what has happened -- it continued and it broke down. Until the individual courts are better managed, cases will continue to take up unnecessary space.

July 02, 2010

tribune242 editorial

Bahamas Blog International