The Rule of Law and the Constitution Trumps Parliamentary Privilege in The Bahamas

Insight: A Simmering Constitutional Crisis Ready To Erupt

Frederick Smith QC says the separation of powers between executive and judiciary is being threatened by ‘capricious’ parliamentarians over the Save The Bays email row . . .

The judgement delivered by Justice Indra Charles in the Save The Bays email case last week is a watershed in the development of Bahamian Constitutional jurisprudence.

It is precedent setting and an historic judgement in Constitutional Law throughout the British Commonwealth.

The issues, the context in which they were raised and the current reaction by the Government, must give civil society in the Bahamas pause for careful reflection.

By mounting this case, the Plaintiffs - Save The Bays and Zachary Hampton Bacon III, the brother of Louis Bacon, one of my fellow directors - have made a great contribution to the continued development of the Rule of Law in the Bahamas for which they should be deservedly proud.

The fundamental issues

1 Do persons in the Bahamas have a constitutionally-protected right to privacy of their private email correspondence and financial information?

2 If so, did the Government, through Cabinet ministers Fred Mitchell and Jerome Fitzgerald, breach such rights inside and outside Parliament?

3 And if so, was this breach nonetheless protected by Parliamentary Privilege?

4 Does the Constitution of the Bahamas and the Rule of Law prevail in the governance of an independent British Commonwealth nation which has a written Constitution, or does Parliament under the guise of exercising Parliamentary Privilege, prevail?

5 Ultimately, is the Bahamas governed by Parliamentary Supremacy (as in England, which does not have a written constitution) or Constitutional Supremacy (as in the Bahamas, which does have a written Constitution)?

In determining the issues before the Court, a wide range of historical Constitutional principles and cases from throughout the United Kingdom and British Commonwealth were analysed and relied upon.

The ruling

The Court found that the Rule of Law and the Constitution “trumped” Parliamentary Privilege.

The Court held that Cabinet ministers and or Members of Parliament in the conduct of Parliamentary affairs and the Government in the guise of the Executive acting through Cabinet ministers inside and outside Parliament were not above the law.

The Supreme Court held that it had an exclusive jurisdiction to adjudicate on and supervise breaches of the Constitution by the Executive and the Legislature. It held that Parliament could not divest the Court of supervisory original jurisdiction and it was for the Court and not for Parliament to decide on the scope and application of Parliamentary Privilege.

The Court held that, in the exercise of such jurisdiction, it was paramount for the Judiciary to be independent and free from interference by the Executive and the Legislature.

The MPs reaction

Despite this judgement, the Government MPs continued to press the Parliamentary Committee on Privileges to continue contempt proceedings against Supreme Court Judge Indra Charles, Frederick Smith, QC, and Ferron Bethell (both trial Counsel to Save The Bays). Other MPs, such as Greg Moss and even the Speaker of the House are aghast. Some are even proclaiming that the judgement is unenforceable.

Parliament had resolved in May to refer them to the Committee to consider whether they should not be committed for contempt of the “High Court of Parliament”.

If the House Privileges Committee proceeds any further a Constitutional crisis (which is currently simmering because of such resolution) will erupt like a volcano and its lava will melt the delicate constitutional construct of the Separation of Powers doctrine and respect between the Supreme Court and Parliament.

Crossing the Rubicon

Once the idea of the Rule of Law evaporates the Bahamas will descend into the ‘Rule of Might is Right’, where capricious daily dictates of policy by ministers hold sway. It is a thin veil between a country ruled by political Might as opposed to Law. That is why the MPs that are taking such umbrage at this judgement should be more reflective and celebrate it, not criticise it.

It is under appeal. There is a stay in place. I urge them to respect the process. I suggest the MPs calm down. At the Court of Appeal, the Speaker can file an Amicus brief on behalf of all Members of the House if he wishes. The Bar Association can do likewise. Even Mr Moss can do so. This is an important case. Lambasting the Judge in and out of Parliament is not civilised conduct.

Does the Bahamas wish to continue to be a Constitutional democracy governed by the Rule of Law, or will ministers Mitchell and Fitzgerald take us across the Rubicon as Julius Caesar did in the last days of the Roman Republic?

What Constitutional rights did the Government breach?

The Court held that the actions of ministers Fitzgerald and Mitchell in Parliament were attributable to the “Government” or “Executive”; they having acted as Members of the Cabinet and not simply as MPs in abusing Save The Bays and Zachary Bacon III. Accordingly, the Government was held liable for the breaches of their Constitutional rights.

The Court found that it was Mr Fitzgerald and the Government that had breached Save The Bays’ rights and not Mr Mitchell.

The Court found that the Government acted in breach of Article 23 of the Constitution, which protected Save The Bays’ freedom of expression and privacy by obtaining, possessing, reviewing and subsequently making disclosures of their private and confidential documents and information.

The Court also found that the Government had breached Article 21 of the Constitution, which protected them from illegal search and seizure of their property without their consent or under the authority of any law.

What did the Court order?

As a result the Court made three important orders.

1 The grant of a “permanent injunction” against the Government that “prohibits the further release or publication of any information contained in the private and confidential documents” of Save The Bays and Mr Bacon.

2 The “permanent destruction and or deletion of all electronic files and or records as well as the destruction of the hard copies of all documents within 14 days” of Save The Bays’ and Mr Bacon’s documents.

3 The Government to pay “vindicatory damages” to Save The Bays and Mr Bacon in the sum of $150,000. This is the largest award ever made for such Constitutional damages in the history of Bahamian jurisprudence.

The Court held that, because a case had not being made out against Mr Mitchell, the Court would not order the Government to pay the costs of the action.

The Government appeals

On delivery of the judgement, the Government immediately gave notice of its intention to appeal this to the Court of Appeal. Any outcome from that appeal is likely to be appealed by either side to the Privy Council.

The Government also applied for a stay of execution of the judgement pending the appeal and Save The Bays did not object

The appeal to the Court of Appeal is likely to be heard within the next six months and an appeal to the Privy Council thereafter is likely to be heard within nine months.

This was a major victory for the Rule of Law and fundamental rights and freedoms in the Bahamas.

It also vindicates Save The Bays and its directors and employees, who were very much wronged by the Government in abusing their right to privacy inside and outside Parliament. You may recall the political circus in Parliament in March when Government ministers and MPs made spurious and unfounded accusations against Save The Bays and individual directors and employees

They were embarrassingly ridiculed, mocked and pilloried with allegations that they were not a legitimate environmental non-governmental organisation; that they were involved in money laundering; and that they were a political organisation bent on destabilising the Government of the Bahamas.

Putting the case in context

This judgement must be put in context. The unwarranted, gratuitous and vicious adversarial reaction by the Government against Save The Bays came as a result of a Supreme Court action launched in March by a number of the directors of Save The Bays along with Reverend C B Moss against Peter Nygard (a major political financial and funder of the governing Progressive Liberal Party (PLP) and Keod Smith for a dangerous hate and harassment campaign spanning years maintained by Messrs Nygard and Smith against them.

Why did the Government attack Save The Bays in Parliament for Peter Nygard?

The question remains: why did the Government savage and attack Save the Bays in Parliament when it had not sued the Government?

Its directors and Rev Moss had sued Peter Nygard and Keod Smith, not the Government.

On the contrary, the evidence was that Mr Nygard had maligned the Prime Minister. So, why was the Government spending the Bahamian taxpayers dollars to defend Messrs Nygard and Smith?

It is even stranger, given that to this day, neither Mr Nygard nor Mr Smith have filed a defence to the claim.

Mr Nygard’s political influence in the Bahamas is alarming and shocking. The fact that the Bahamas allows a non-citizen to hold such sway simply because he donates $5m or more to the election campaign of the now governing PLP party should cause all citizens of the Bahamas to pause and consider which direction they want the Government to take at this crossroads in the future of the Bahamas.

A mysterious pattern of behaviour

This continues a pattern of behaviour by the Government that remains mystifying - to say the least.

Each time Save The Bays or another environmental NGO such as ReEarth in the Blackbeard’s Cay dolphins case, or Save Guana Cay Reef at Baker’s Bay, or Bimini Blue Coalition, challenges a development on the basis that it is proceeding illegally, the Government rushes all the way to the Privy Council, each time spending the Bahamian taxpayers’ dollar to defend the developer instead of letting the developer spend its own money to defend itself.

Why is that? Why does the Government always defend unregulated development at the Bahamian taxpayers’ expense? What vested interest does the Government have in each development?

So, in this case, why was the Government holding brief for Mr Nygard and Mr Smith in Parliament against Save The Bays?

Why is the Government going to spend millions of taxpayers’ dollars to continue to seek to protect Mr Nygard and Mr Smith by appealing?

Why appeal the judgement?

To prove what? Does the Government really wish to win an appeal?

To boast internationally that the Government can unconstitutionally seize Save The Bays emails?

That the Government can unconstitutionally expose them in public?

That the Government cannot be held accountable because, by Parliamentary Privilege, MPs are above the organic law?

And to boast that the oldest Parliament in the New World has the power to jail a Judge and lawyers who take a case to court to protect Constitutional rights?

How internationally embarrassing will that be?

Banana Republic or Constitutional democracy?

Is the Bahamas to be regarded internationally as a Banana Republic? A rogue nation? A political pariah amongst states? A dictatorship governed by arbitrary and capricious ministerial dictate, swooning at Mr Nygard’s and every other developer’s altar of money?

This rape by the Government of Save The Bays’ right to privacy and public exposure of its private emails and financial information, coming in the wake of the disclosure of the Panama Papers, has already cast the Bahamas in an extremely negative and prejudicial light in the international financial services industry.

A score of anxious bankers have already met with and expressed concern to the Prime Minister and Minister of Financial Services, Hope Strachan.

What was in the emails?

And for what? What were the contents of the emails? Why was the Government making such a fuss about them? Why were the ministers so exercised? They were uncontroversial.

One contained a draft letter of complaint by Save The Bays to the Police about the Nygard and Smith hate campaign; the other contained a draft advertisement about Nygard Cay; another from the Grand Bahama Human Rights Association contained a draft press release about Mr Mitchell’s illegal immigration road blocks.

So what, pray tell, was so politically captivating and salacious about them? How did they convert into accusations of political destabilisation of the Government and money-laundering?

Why was the nation’s attention held hostage and transfixed in Parliament for days by ministers Mitchell and Fitzgerald painting a picture of alleged nefarious activities by Save The Bays on a canvas that did not exist?

If the actions of the Government had not been challenged and checked by this Court action, not only may the reputation of Save The Bays and its directors have been irreparably sullied and tarnished, but it also had the potential to cause the flight of much financial business and to detract from further legitimate investment.

The Government should celebrate this judgement

The Government should be proud of this judgement and celebrate it as a great day for the Rule of Law. It should not appeal it.

Parliament should end the simmering Constitutional crisis and withdraw its contempt resolution against the Judge and Counsel.

The judgment helps to promote the Bahamas as a stable democracy, where it is safe to do business and where people’s rights are protected by an “abiding respect for … the Rule of Law”, which is expressed in the Preamble to the Constitution.

The Government should divorce itself from Mr Nygard and Mr Smith.

A ray of constitutional hope

The Judgment demonstrates to the world that:

1 The Bahamas is a country that respects the Rule of Law;

2 The Judiciary is independent of the Executive and the Legislature;

3 Persons whose rights are abused in the Bahamas have recourse to independent Courts and effective redress;

4 The right to privacy of one’s private information is effectively protected in the Bahamas by the Constitution;

5 The Courts will vindicate and protect breaches of such rights.

Accordingly, the international financial services industry, which has confidence in the Bahamas as a legitimate jurisdiction within which to do business, can in the short term, be comforted in the protection of their confidential financial information by this judgement.

But not so if the Government appeals, wins an appeal, or jails a Judge and Counsel.

• Comments and responses to insight@tribunemedia.net

August 8, 2016

Tribune242 

Naturalized citizens of The Bahamas, take serious note of the Bahamian Constitution ...which speaks in Article 11 of the circumstances that can lead to the Governor General depriving a Bahamian of citizenship

The Ministry of Foreign Affairs and Immigration has taken note of complaints to the Ministry from Bahamian citizens about the comments made in the press by a purported citizen of The Bahamas who now lives in the United States and the adverse comments about The Bahamas from a state legislator in Florida. The Ministry is investigating the complaints to determine what are the appropriate administrative measures if any that are necessary to protect the sovereign integrity of The Bahamas.

The Ministry reminds the public that the constitution requires all citizens to act in manner which does not prejudice the sovereignty of the state or jeopardizes their citizenship. Any visitor to our country must comport themselves in accordance with the law.


The Constitution speaks in Article 11of the circumstances that can lead to the Governor General depriving a Bahamian of citizenship.

11. (1) If the Governor-General is satisfied that any citizen of The Bahamas has at any time after 9th July 1973 acquired by registration, naturalization or other voluntary and formal act (other than marriage) the citizenship of any other country any rights available to him under the law of that country, being rights accorded exclusively to its citizens, the Governor-General may by order deprive that person of his citizenship.

(2) If the Governor-General is satisfied that any citizen of The Bahamas has at any time after 9th July 1973 voluntarily claimed and exercised in any other country any rights available to him under the law of that country, being rights accorded exclusively to its citizens, the Governor-General may by order deprive that person of his citizenship.

These are very limited circumstances in which the Governor General can act.

The Bahamas Nationality Act says in Section 11 ( 2) (a) (iii) that the Minister for Nationality may by order deprive someone who is a naturalized citizen of his or her citizenship if that person has shown himself by act or speech to be disloyal or disaffected towards The Bahamas.

The point here is that citizenship of The Bahamas is precious and important and worthy. It is not to be enterprised or treated lightly.

I urge all citizens therefore to be mindful that we have in all things to be sure of our conduct. The world marks the manner of our bearing.

The policies are not complicated. They are not targeted at any particular national group.
I am hoping that we have a good discussion this morning.

--
Elcott Coleby
Deputy Director
Bahamas Information Services
326-5833
477-7006

Constitutional reform - pt. 14... ...the need for a new Caribbean jurisprudence... ...Caribbean Judges should be encouraged to demonstrate flexibility in developing our constitutional jurisprudence in the Commonwealth Caribbean

Constitutional reform pt. 14

The constitution: Limitations in enforcement of Bill of Rights

By Alfred Sears

The fundamental rights guaranteed to us under the constitution contain a number of limitations which impede the effective enforcement of the Bill of Rights under Commonwealth Caribbean constitutions and demonstrate the need for a new Caribbean jurisprudence.

The first limitation is the existence of broad derogation clauses in these constitutions.  While most of the derogation clauses are fairly standard, however, in The Bahamas Constitution the derogation clauses to the protection from arbitrary search and entry are in the broadest terms excusing any action reasonably required, “in the interest of defense, public safety, public order, public morality, public health, town or country planning, the development or utilization of any other property in such manner as to promote the public benefit.”

As Professor Lloyd Barnett in the essay “The Present Position Regarding the Enforcement of Human Rights in the Commonwealth” (October 1980) 2 W.I.L.J. 97 cautions, these derogation clauses are “... all imprecise in nature, and leave the door open to unnecessary legislative encroachments.”

The second limitation in the enforcement of personal liberties under these constitutions involves the existence of saving clauses, which preserve existing written and unwritten law from invalidation because of inconsistency with provisions of the Bill of Rights provisions.

The former Chief Justice of The Bahamas Telford Georges, in an essay “The Scope and Limitations of the State Machinery”, Int’l Comm’n of Jurists and Organization of Commonwealth Caribbean Bar Association, Human Rights and Development (1978), speaking of a similar clause in the constitution of the Republic of Trinidad and Tobago, argues that such a clause “... considerably limits the scope of the machinery of judicial review as a method of enforcement of the rights apparently enshrined in the constitution.  The judicial view... is that the constitutions create no new rights.  They merely preserve existing rights.”

The case of Re Thornhill illustrates how rights stated in a Bill of Rights provision in the constitution of Trinidad and Tobago was weakened by a pre-existing common law rule.  Thornhill, who had been arrested on multiple charges, alleged that the police had denied him the right to communicate with the lawyer of his choice.  The pre-republican constitution of Trinidad and Tobago, Section 2 (2) (ii), stated that no act of Parliament should deprive a person who has been arrested or detained of the right to retain and instruct without delay a legal adviser of his or her choice and to hold communication with him.  Therefore, the defendant asked the Supreme Court of Trinidad and Tobago to declare, inter alia, that the police had contravened his constitutional right to legal counsel immediately after arrest.

The attorney general argued that there was no right to counsel at common law therefore it did not exist under the constitution, since existing law had been preserved and could not be invalidated even if inconsistent with the constitution.

Justice Telford Georges, then the chief justice of Trinidad and Tobago and the trial judge, rejected this view and stated: “I hold that the right now exists because the constitution has proclaimed that it has always existed here and that it should continue to exist.”

The learned judge reasoned that the phrase “without delay” must not mean at the convenience of the investigators or at the stage where definable rights could be won or lost, but rather it “... is a right which arises immediately after arrest and that the right to exercise the right should be afforded without delay.”

The High Court of Trinidad and Tobago rejected this argument and concluded that the Bill of Rights was not intended to enlarge that body of rights which existed prior to the constitution.  However, the principal judgment of the High Court was based on another ground.  The court held that the police are not law servants of the state and as such they act independently; therefore, their actions could not be the basis for recovery for infringement, abrogation or abridgment of a fundamental right.

This decision by the High Court of Trinidad and Tobago elicited widespread criticism from legal commentators in the Caribbean.  Dr. Francis Alexis, for example in the essay “After Thornhill: Does Anything Remain of the Bill of Rights?”, West Indian Law Journal, October 1977, argued that this decision by the High Court was “ ... a neat illustration of the dangerous cul-de-sac towards which the courts can be impelled by holding fast to the singularly unfortunate doctrine that the Bill of Rights did not create any right where before there was none.”

Regarding the issue of whether the police are public servants or independent agents, Alexis pointed out that, unlike in England where the responsibility for financing the different police services is divided between the central government and local police authorities, in the Caribbean the financing, maintenance and control of the police services is exclusively by central government, notwithstanding public and police service commissions.  Alexis concluded that: “Perhaps the ordinary individual’s most frequent contact with the state administration is that with the police ... If, therefore, the police are excluded from the ambit of the Bill of Rights one may suggest .... that the Court of Appeal in Thornhill said an obituary on the Bill of Rights.”

However, this dire prediction was not realized, as the Privy Council reversed the Trinidadian Court of Appeal and held that an arrested or detained person has a right to consult counsel without delay after arrest or detention even while being in police custody, thereby affirming the judgment of Georges at the first instance.

The net effect of the saving clauses in Caribbean constitutions has been to weaken and create ambiguity about fundamental rights stated with apparent clarity in the constitutions; thus, undermining the clear intent of the framers of the constitutions of these newly independent countries of the Commonwealth Caribbean.

 

A further limitation

The third limitation in the enforcement of the Bills of Rights concerns the common law rules of construction often applied by the courts in constitutional interpretation which is based on notions derived from the British doctrine of parliamentary supremacy.  Sir Leonard Knowles, former chief justice of The Bahamas, in regard to the rules of construction applied to constitutional interpretation in the Commonwealth Caribbean, quoted Lord Diplock, who in Hinds v. The Queen (1976) 2 W.I.R. 372 stated that: “To seek to apply to constitutional instruments the canons of construction applicable to ordinary legislation in the fields of substantive criminal or civil law would, in their lordships’ view, be misleading ... there can be discerned in all those constitutions which have their origin in an act of the Imperial Parliament at Westminster or an order in council, a common pattern of style of draftsmanship which may conveniently be described as the Westminster model.”

The Privy Council in Minister of Home Affairs v. Fisher (1979) 3 All E. reiterated this principle R. 21.  At issue here was a provision of the Bermuda constitution which permitted legislative derogation from the right of freedom of movement of persons who did not “belong to Bermuda”.’

The Privy Council held that in construing the constitutional definition of “persons who belong to Bermuda”, the common law presumption that the word “child” excludes illegitimate children should not be followed.

Lord Wilberforce cautioned that a constitution should not be interpreted like an act of Parliament, but that it requires “principles of interpretation of its own suitable to its character as already described, without necessary acceptance of all of the presumptions that are relevant to legislation of private law”.

In spite of the Privy Council’s apparently clear position that a constitution should not be interpreted like ordinary legislation, Lloyd Barnett, using the Nasralla case as an example, observes that in the Caribbean “frequently in constitutional cases judges state the principle of construction in a form which is indistinguishable from that utilized in the interpretation of ordinary statutes... the approach to constitutional interpretation has been largely dominated by English techniques of statutory interpretation”.

 

The American context

It is instructive to contrast this practice of constitutional interpretation in the Caribbean with constitutional practice in the United States.  In U.S. constitutional jurisprudence the U.S. Supreme Court is the ultimate guardian of the freedoms and rights of the individual, facilitated through the power of judicial review established by the case Marbury v. Madison (1803) 5 U.S. 137.

Professor Henry M. Hart in the essay “The Power of Congress to Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic” 66 Harv. L. Rev. (1953) 1362, argues that protection of the U.S. Bill of Rights is an essential function of the court the jurisdiction of which cannot be destroyed by Congress.

Using the political process rationale developed by Justice Stone, he contends that the Supreme Court  is the guardian of the freedoms of the individual and the protection of minorities against the state and majoritarianism.  However, Professor Derrick A. Bell, Jr. in  Race, Racism and American Law (2nd ed. 1980) contends that the U.S. Supreme Court has not been consistent in maintaining this “essential function” with respect to the fundamental rights of African-American citizens, as illustrated by the cases Plessy v. Ferguson (1896) 163 U.S. 537, Dred Scott v. Sandford (1857) 60 U.S. 393 and the Slaughter-House (1873) 83 U.S. 36 cases.

Bell posits that the court’s role has been paradoxical in this area, swinging from extreme conservatism during the Post Civil War Reconstruction era to healthy activism during the civil rights era, the latter illustrated by decisions such as Brown v. Board of Education (1954) 347 U.S. 483, Loving v. Virginia (1967) 388 U.S. 1, and Katzenbach v. Morgan (1966) 384 U.S. 641.  Bell concludes that the degree of progress that African-Americans have made away from slavery and towards equality has depended on whether allowing blacks more or less opportunity best served the interests and aims of white society.

However, the U.S. Supreme Court, in an equality revolution begun by the Warren Court, established a dual standard of constitutional review, rational standard and the strict scrutiny standard and has readily found that all disadvantaging classifications resting on race and ethnicity are suspect and violate the equal protection clause of the Fourteenth Amendment, treating discrimination based on national origin the same as discrimination against African-Americans in such cases as Yick Woo v. Hopkins, Hernandez v. Texas and Trimble v. Gordon.

Justice Black, in Korematsu v. United States (1944) 323 U.S. 214, stated that the court in such situations will use a strict scrutiny standard of judicial review and not the rational basis standard normally applied to legislation: “All legal restrictions which curtail the civil rights of a single racial group are immediately suspect.  It is to say that courts must subject them to the most rigid scrutiny.  Pressing public necessity may sometimes justify the existence of such restrictions, racial antagonism never will.

Thus, the court has outlawed invidious group differentiation which is irrelevant to a person’s capabilities and contributions.  The court, in the case Plyler v. Doe (1982) 457 U.S. 202 also invalidated a Texas statute permitting local school boards to deny free education to school-aged children of illegal aliens as violating the equal protection clause of the Fourteenth Amendment.

The U.S. Supreme Court has also used the Due Process Clause of the Fourteenth Amendment to extend individual liberties.  In Griswold Justice Douglas, using a penumbra theory, held that the right of privacy, though not specifically stated in the Bill of Rights, is nevertheless protected against unnecessarily broad state regulation.  He posited that some of the explicit provisions of the Bill of Rights created a zone of privacy.  He concluded that the right of married persons to use contraceptives fell within this penumbra.

In Roe v. Wade (1973) 410 U.S. 133, Justice Blackman held that this right of privacy includes a pregnant woman’s control over her own body and that her right to abortion was as an aspect of the right of privacy.   Professor Lung-Chu Chen in the essay “Institutions Specialized to the Protection of Human Rights in the United States” 1 N.Y.L. Sch., Human Rights Annual 27 (1983), argues that the flexible, contextual approach of the U.S. Supreme Court in constitutional interpretation has resulted in more human rights protection for more people in more areas, extending to all important value sectors.  Caribbean Judges should be encouraged to demonstrate similar flexibility in developing our constitutional jurisprudence in the Commonwealth Caribbean.

 

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

November 22, 2012

thenassauguardian

Caribbean Blog International

Constitutional Reform - pt. 13... ...I urge that the Constitutional Review Commission recommend the removal of derogation clause 4 (e) from Article 26 of the Constitution ...in order to affirm the constitutional norm of non-discrimination ...regularize and tax the Bahamian community gaming industry ...and open casino gaming to Bahamian ownership, management ...and patronage

Constitutional reform - pt. 12... ...I therefore recommend that Article 23 of the constitution be amended to include a specific guarantee for freedom of the press ...in order to better protect the community’s interest in integrity in public administration ...through robust scrutiny by an independent press

Constitutional reform pt. 12

Freedom of expression

By Alfred Sears

In a democratic society there is no greater right than the right of citizens to know what the government is doing on their behalf, which includes the right to hold opinions, to receive and express ideas and information without interference.  The constitution guarantees our right to freely express ourselves by engaging in open political debate amongst ourselves as well as to engage in political discourse with our elected officials and with candidates who offer themselves for public office.

Article 23 of the constitution guarantees freedom of expression to every person in The Bahamas that provides that:

1. Except with his consent, no person shall be hindered in the enjoyment of his freedom of expression, and for the purpose of this article the said freedom includes freedom to hold opinions, to receive and impart ideas and information without interference, and freedom from interference with his correspondence.

2. Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this article to the extent that the law in question makes provision –

(a) which is reasonably required –

(i) in the interest of defense, public safety, public order, public morality or public health; or

(ii) for the purpose of protecting the rights, reputations and freedom of other persons, preventing the disclosure of information received in confidence, maintaining the authority and independence of the courts, or regulating telephony, telegraphy, posts, wireless, broadcasting, television, public exhibitions or public entertainment; or

(iii) which imposes restrictions upon persons holding office under the Crown or upon members of disciplined force, and except so far as that provision or, as the case may be, the thing done under the authority thereof is shown not to be reasonably justifiable in a democratic society.

This guarantee is meaningless unless there is reasonable access to the broadcast media and protection of the media.  Therefore, the issuance of private broadcast licenses in The Bahamas beginning around 1994 has allowed greater freedom of expression in The Bahamas.

The Court of Appeal of Belize in the Belize Broadcasting Authority v. Courtenay (1986) 38 WIR 79, dealing with a provision, identical to Article 23 of the Bahamian Constitution, under the Constitution of Belize, held that to broadcast on radio and television is “today an integral part of the freedom of expression and to place the need for the authority’s consent before one can do what is an integral part of the freedom constitutes a hindrance to that freedom.”  Access to the broadcast media is especially important in an archipelago, like The Bahamas, where people are scattered over many different islands separated by a wide expanse of water.

The Privy Council has held that fear of criticism cannot justify hindering the public access to the broadcast media and access to the broadcast media by political opponents.  In the case Hector v. Attorney General of Antigua and Barbuda (1990) 2 All E. R. 103, per Lord Bridge, held that: “In a free democratic society it is almost too obvious to need stating that those who hold office in government and who are responsible for public administration must always be open to criticism.  Any attempt to stifle or fetter such criticism amounts to political censorship of the most insidious and objectionable kind.  At the same time it is no less obvious that the very purpose of criticism leveled at those who have the conduct of stewardship is to persuade the electorate that the opponents would make a better job of it than those presently holding office...”.

In the United States, the First Amendment of the constitution declares that the Congress shall not abridge the freedom of the press.  However, in the Constitution of The Bahamas, there is no specific mention of the press or the guarantee of press freedom.  In The Bahamas, the laws of defamation and a fear of offending a prime minister or other elected officials often places a restraint on robust investigative reporting on politically sensitive matters.  A number of journalists in The Bahamas have been prosecuted, sued or threatened with prosecution for criticizing aspects of the public administration in The Bahamas.  The community interests, integrity and honesty in public administration can be compromised when the people and the press do not enjoy absolute privilege to criticize public officials.  This privilege should include matters of public concern, public officials and candidates for public office.  As the United States Supreme Court stated, in the case New York Times Co. v. Sullivan, debate on public issues should be uninhibited, robust and wide open and may well include vehement caustic and sometimes unpleasant sharp attacks on government and public officials, an occasional erroneous statement is inevitable in free debate.  Save and except in cases of malice, the press should be unfettered in its criticism and scrutiny of public administration in The Bahamas.

I therefore recommend that Article 23 of the constitution be amended to include a specific guarantee for freedom of the press in order to better protect the community’s interest in integrity in public administration through robust scrutiny by an independent press.

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

Nov 08, 2012

thenassauguardian

Caribbean Blog International

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... ...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... ...

Constitutional reform Pt. 7: ... ...I, therefore, recommend that we amend our constitution to provide for the public funding of national elections ...with appropriate legislation to establish a system of public campaign financing ...to better secure the right to vote, reduce corruption of the political process and increase competition by independent candidates and small parties

Constitutional reform Pt. 7

By ALFRED SEARS

In June 1998 in an address at the Colloquium on Political Reform, Constitutional Change and National Development at The College of The Bahamas, the Rt. Honorable Sir Lynden Pindling — after 25 years as head of government and 19 years as prime minister of an independent Commonwealth of The Bahamas — advocated that the fundamental rights provisions of the Bill of Rights of the Bahamian Constitution should be expanded in the following terms:

“Experience has taught me that the list of fundamental rights and freedoms set out in Chapter 3 of the existing constitution should be expanded to include matters such as:-

(1) The right of a citizen to vote and the right to the equal exercise of political choice.

(2) The right of a citizen to a passport.

(3) The right of a citizen to secondary education.

(4) The right of a citizen to good health and a clean environment.

(5) The right of a citizen to seek and obtain public information.

(6) The right of a citizen to equal access to opportunity.

(7) The right of a citizen to be free from fear and from victimization

(8) The right of a citizen to fair competition.

“All the laws of The Bahamas, both old and new, should then be required to pass the litmus test of the revised constitution and any Bahamian citizen who wishes to institute proceedings to defend or enforce any of the rights and freedoms should be able to do so without having to obtain the prior consent of the attorney general.”

Right to vote

Many Bahamians trace the birth of the modern Bahamas to the grant of universal adult suffrage in 1960, when women were given the right to vote and right to sit in the legislature.

The exercise of the right of every adult citizen to vote in an election of members of the House of Assembly and the right to be qualified for membership therein led to majority rule in 1967 and widened the participation of Bahamians, of all class and racial background, in the governance of The Bahamas. It is this participation in the selection of the government, more than any other right, which guarantees Bahamians a democratic government.

General elections are the source of the democratic origins of governments in The Bahamas, as an expression of the general will of the Bahamian citizens, yet the right to vote is not presently entrenched in the constitution. Although it is implicitly recognized in the constitutional provisions governing the functions of the House of Assembly and the Constituencies Commission. Under our constitution the right to vote is not included in the bill of rights as a fundamental right.

The Parliamentary Elections Act, 1992 is the principal basis upon which the right to vote is established.  Under Section 8 of the Parliamentary Elections Act, a person is entitled to be registered as a voter for a constituency if, on the day of registration:

+(a) he is a citizen of The Bahamas of full age and not subject to any legal incapacity; and

(b) he is, and has been during the whole of the period of three months immediately preceding that day, ordinarily resident in premises in that constituency.”

Section 9 provides that every person who is “registered as a voter in any polling division in any constituency shall be entitled to vote at that polling division at an election in that constituency, provided that on the day of election, the person is a citizen of The Bahamas of full age and not subject to any legal incapacity and, the case of a person who is registered as a voter in a polling division in that constituency, he is, or has been at some time during the period of one year immediately preceding that day, ordinarily resident in premises in that constituency”. Legal incapacity is defined in the act as a person who is serving a sentence of imprisonment imposed by a court of law, under a sentence of death, or one who is deemed to be a lunatic or of unsound mind.

While the right to vote is not entrenched in the constitution, Bahamian voters perceive the right to vote as a fundamental right, reflected in consistent massive voter turnout since independence. For example, the voter turnout for the May 7, 2012 General Election was 155,948 or 90.6 percent of the total registered voters of 172,128, and in the March 14, 1997 General Election 93 percent of the Bahamian electorate, or about 129,000 voters, voted. The political practice of the Bahamian people demonstrates that the right to vote is treated as a fundamental democratic right.

I recommend, therefore, that we amend our constitution to provide an entrenched constitutional right of every citizen to vote in an election of members of the House of Assembly and the right of every citizen to be qualified for membership therein as a fundamental right, subject to such exceptions and considerations as may be reasonable in a democratic society.

Secret political campaign contribution

In early 1966, the then opposition Progressive Liberal Party charged that the then governing United Bahamian Party was maintained in power by gerrymandered constituencies, strong conflict of interest in the operations of ministers and that some ministers were in the pay of shady casino operators active in Grand Bahama.

In that same year, the Wall Street Journal alleged that the premier and the speaker of the House had received “consultancy fees” from certain Grand Bahama casino operators who at the time were reputedly under the influence of Meyer Lansky of Miami Beach. The paper alleged that Sir Stafford Sands had received “consultancy fees” in excess of millions of dollars for using his political influence for legalizing casino gambling.

After the Progressive Liberal Party came to power in the general election of 1967, a Commission of Inquiry (“the Bacon Commission”) was appointed in April 1967 to investigate irregularities over the casino concessions.

The Bacon Commission confirmed the allegations that had appeared in the Wall Street Journal.  With respect to Sir Stafford Sands, the Commission reported that the legal fees paid to him for expediting the Freeport Casino licence was “even by Bahamian standards, out of proportion to the legal services he rendered … the enormity of the fee demanded and the speed and a manner with which payment was affected, coupled with every circumstance of his handling of this application leave … no doubt that he was selling his services primarily as an influential member of the Executive Council and not as a lawyer.”  The commission detailed a pattern of secret financial contributions by foreign investors to Bahamian political parties.

After the Bacon Commission was debated in the House of Assembly, a Progressive Liberal Party sponsored resolution was passed. It alleged that Sir Stafford Sands, a former United Bahamian Party minister, a senator and three members of the United Bahamian Party, including the former speaker, were “guilty of a crime against the people of The Bahamas”.

The issue of secret campaign contributions to our political directorate was again raised, 17 years later, in the Commission of Inquiry in to the Illegal Use of The Bahamas for the Transshipment of Dangerous Drugs, in 1984. The findings of the commission resulted in significant erosion in the brand and reputation of The Bahamas. If we were to have a Commission of Inquiry today to investigate the role of secret campaign contributions to our political parties would there be the same result as the Commissions of Inquiries of 1967 and 1984?

The Bahamas acceded to the United Nations Convention against Corruption on  January 10, 2008.  Pursuant to Chapter II, Article 7 (4) of this convention, The Bahamas accepted an international obligation to make good faith efforts to “enhance transparency in the funding of candidatures for elected public office and, when applicable, the funding of political parties”.

In light of this international obligation and the current political campaign practices, The Bahamas runs the risk of being listed again by multilateral agencies for lack of transparency in its political process, which will result in the further erosion of the global brand and reputation of The Bahamas.

In its May 21, 2012 report, the CARICOM Electoral Observer Mission of the General Election of May 7, 2012, recommended that “consideration should be given to implementing laws to govern campaign funding focusing on (a) source of funds; (b) use of funds; and (c) limits on expenditure.”

They proposed that “such legislation would (i) lessen the risk that those who contribute funds will control the elected representatives they finance; (ii) eliminate the risk that illicit money can corrupt the system and undermine the rule of law; (iii) improve the chances of persons without money or access to money but are interested in running for office; and (iv) reduce the risk of large sums of money in election campaign giving undue advantage to some candidates and constrain competition.”

Financial contributions provide political parties with the means to quickly travel the length and breadth of the archipelago and orchestrate large conventions, rallies and distribute expensive posters, handbills, shirts and purchase ads in the media, etc. This can project the appearance of momentum which will influence the voters. However, the long-term effect of secret campaign contributions will be voter cynicism arising out of a general impression that the political process is corrupt and/or favors foreign investors and other secret donors.

I, therefore, recommend that we amend our constitution to provide for the public funding of national elections, with appropriate legislation to establish a system of public campaign financing to better secure the right to vote, reduce corruption of the political process and increase competition by independent candidates and small parties.

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

Oct 04, 2012

thenassauguardian

Constitutional reform, pt. 4: ... ...I now offer some recommendations for consideration in the reform of Chapter 2 of the Bahamian Constitution

Constitutional reform, pt. 4

By Alfred Sears

In part 3, I described the instances of unequal and discriminatory treatment of Bahamian women citizens who are married to non-Bahamian spouses and their children born outside of The Bahamas; and the condition of statelessness which results when children born in The Bahamas, neither of whose parents are citizens of The Bahamas, are not regularized in a timely fashion.  I now offer some recommendations for consideration in the reform of Chapter 2 of the Bahamian Constitution.

 

Recommendations

The citizenship provisions of the Constitution should balance the principles of (1) careful control of national membership in the Bahamian nation; (2) a recognition of the human rights claim of those who have a genuine link to The Bahamas; and (3) the competition within the global marketplace amongst countries to attract and maintain the human resources of the world.  The most critical resource in The Bahamas, I contend, is the people.  The talent, creative imagination and intellectual production of the Bahamian people and residents are the critical factors that will determine whether The Bahamas realizes its full potential.

Therefore, we should be inclusive in our citizenship policies, giving all persons who have a genuine link to The Bahamas the security of a legal status to inspire in them a sense of loyalty to The Bahamas and a desire to make their best contribution to the development of The Bahamas.  In this context, I therefore recommend that the citizenship provisions of our Constitution be amended in the following respects:

1. That all gender discrimination be removed from the citizenship provisions, especially with respect to the non-national spouses of Bahamian women and their children born outside of The Bahamas.  Bahamian men and women should be treated equally in all respectS under the citizenship provisions of the constitution.  The norm of nondiscrimination should be the guiding principle as we reconstruct the constitution.

2. The protection of the status of children and the avoidance of statelessness amongst children in The Bahamas should inform the citizenship provisions of the constitution dealing with children.  Therefore, children born in The Bahamas should be deemed citizens at birth where at least one parent is a citizen of The Bahamas, a permanent resident, an immigrant on work permit or is registered under the Immigration Act 1967.  Further, a child under five years found in The Bahamas, whose parents are not known, should be presumed to be a citizen of The Bahamas by birth.  Like the 14th Amendment of the United States Constitution and Article 5 of the Constitution of Jamaica, which grant citizenship to all persons born in the United States and Jamaica, we should retain and strengthen Article 7 of the Bahamian Constitution so that children born in The Bahamas, neither of whose parents are citizens, are given citizenship at birth.  We should not punish children for the illegal conduct of their parents.

3. Also children born overseas to a citizen of The Bahamas serving in a diplomatic or consular capacity should be recognized as citizens by birth.

4. The constitution should be revised to recognize dual and multiple citizenship.  Increasingly more Bahamian nationals are residing outside of The Bahamas, particularly in the United States.  These Bahamians have benefited from obtaining the citizenship of other countries.  Some may argue that dual and multiple nationalities may affect the security of The Bahamas, such as facilitating the fraudulent use of passports, the commission of major crimes, the provision of safe harbor for fugitives and the smuggling of would-be immigrants.  While these concerns must be carefully considered, I believe that the Bahamians across the diaspora have always shown an unswerving patriotism towards The Bahamas.

Bahamians have always sought self-improvement and increased opportunities in other countries without losing their loyalty to The Bahamas and their sense of national pride.  This was reflected in the “Project” during the 1940s and 1950s when thousands of Bahamian men and women worked as migrant workers in the United States.  Today thousands of Bahamians reside outside The Bahamas in pursuit of higher education and professional opportunities.  In fact, the Bahamian diaspora should be perceived and used as a critical source of influence, investment and remittances in the international community to advance the Bahamian strategic development, security and global brand.

Dual and multiple nationalities would not, in my opinion, undermine the loyalty Bahamians have to The Bahamas.  Further, several Commonwealth Caribbean countries as well as the United States provide for multiple and dual citizenship.  Moreover, The Bahamas tacitly recognizes dual citizenship of its citizens, as is evidenced by Article 8 where a person born outside of The Bahamas to a Bahamian father becomes a Bahamian citizen at birth and in the note contained in the Bahamian passport, which states that: “Citizens of The Bahamas who are also nationals of another country cannot avail themselves of the protection of the representatives of The Bahamas against the authorities of that country, and are not exempt, by reason of possessing Bahamian citizenship, from any obligation (such as military service) to which they may be liable under the law of that country.”

5. Section 16 of the Bahamas Nationality Act says the minister “shall not be required to assign any reason for the grant or refusal of any application or the making of any order under this act the decision upon which is at his discretion; and the decision of the minister on any such application or order shall not be subject to appeal or review in any court”.  This ouster clause does not mean that the minister should not act in accordance with the rules of natural justice.  Given the fundamental importance of decisions relating to nationality, the discretion of the minister responsible for nationality and citizenship relating the determination of applications for registration or naturalization should be subject to judicial review and no person should be deprived of her/his citizenship without due process of law.

5. Finally, Chapter 2 of the constitution dealing with citizenship should be expressed in more readily understandable form and the language and structure should be simplified.

 

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

Sep 13, 2012

thenassauguardian

Constitutional reform Pt. 1: ... ...After 39 years of constitutional practice in The Bahamas, it is now time that we examine our constitution ...to determine if it conforms to the demands and expectations of contemporary Bahamian society... ...Does the Bahamian constitution reflect the contemporary shared expectations and experiences of the Bahamian community today?

Constitutional reform Pt. 1

By Alfred Sears

On Wednesday, August 1, 2012, Prime Minister Perry Christie, in a communication to the House of Assembly, announced the appointment of a Constitutional Commission to review and recommend changes to the Constitution of The Bahamas, in advance of the 40th anniversary of Bahamian independence.  The commission is chaired by Mr. Sean McWeeney, Q.C. and the members include Mr. Loren Klein, a member and technical co-ordinator of the commission’s secretariat; Mr. Carl Bethel; Madam Justice Rubie Nottage (retired); Mr. Mark Wilson; Mr. Lester Mortimer; Mrs. Tara Cooper-Burnside; Professor Michael Stevenson; Dr. Olivia Saunders; Mr. Michael Albury; Ms. Chandra Sands; Ms. Brandace Duncanson and Mrs. Carla Brown-Roker.

The newly-appointed commission will be able to complete the constitutional review process that had been started by the Constitutional Commission, that had been appointed by Prime Minister Christie on the December 23, 2002, under the joint chairpersons Paul Adderley and Harvey Tynes, QC, but which process the government abandoned after the 2007 general election.

This series of 20 articles on constitutional reform in The Bahamas, parts of which were first published by The Nassau Guardian in 2000 and are now updated, is intended to engage the Bahamian community in public conversation about the constitution in a frank and constructive manner, in light of the changing shared experience and expectations of contemporary Bahamian society.

While I will examine the limitations of the constitution, I will also provide recommendations, informed by the experience of other constitutional democracies, to assist us in creating a more perfect democracy in The Bahamas.  It is my hope that these articles will encourage public discussion about our governmental structure, citizenship, fundamental rights, the independence of the judiciary, campaign finance reform, public contracts, the Privy Council, the death penalty, republican status and the need for more effective checks and balances in our system of government.

The Constitution of The Bahamas, framed during the early period of modernization in The Bahamas, concentrates too much power in the Office of the Prime Minister, discriminates against women; does not guarantee the right to vote, the freedom of the press, protection of the environment; and does not promote economic and social rights.

The American legal scholar, Professor Myres McDougal, asserted that a constitution should be “a living instrument, a dynamic and continuing process of communication, practices and decisions.  It is made and continually remade in response to the changing demands and expectations of the people under ever-changing conditions.  It should reflect not only the shared expectations of the original framers of the constitution, but also those of succeeding generations.  It should also reflect the contemporary shared expectations and experiences of community members today.”

The Bahamas Independence Order 1973, an act of the British Parliament, provides for The Bahamas to become an independent sovereign nation.  The constitution is actually the appendix to The Bahamas Independence Order 1973.  The representatives of the Bahamian people at the Constitutional Conference in London in December, 1972 comprised the following individuals: Sir Arthur Foulkes, Sir Orville A. Turnquest, Sir Lynden O. Pindling, Sir Clement Maynard, Arthur Hanna, Paul Adderley, Philip Bethel, George A. Smith, Loftus A. Roker, Cadwell Armbrister, Norman Solomon, Sir Milo Butler, Sir Kendal G.L. Isaacs, Mr. Carlton Francis and Mr. Henry Bowen.  These 15 men are collectively known as the framers of the Bahamian Constitution.  There were no Bahamian women represented at the Constitutional Conference of 1972.  Therefore, the review of the constitution will afford Bahamian women, for the first time in our history, an opportunity to be directly involved in the remaking of our constitution, as members of the Constitutional Commission, members of Parliament and electors in any referendum.

The form and structure of the Constitution of The Bahamas was patterned after the constitution of Jamaica of July 25, 1962, which was itself patterned after the Nigerian constitution of October 1, 1960, incorporating a bill of rights based on the European Convention for the Protection of Human Rights and Fundamental Freedoms.  All of these constitutions were drafted under the supervision of the Colonial Office in London.  The heading of chapters, the numbering of the parts, and over 60 percent of the sentences, clauses, phrases and words used in the Bahamian Constitution are to be found in exact form in the constitution of Jamaica and the earlier constitutions of Nigeria and Sierra Leone.  Due to this Westminster constitutional model received by The Bahamas and other Caribbean countries, Professor Trevor Munroe, in his book “The Politics of Constitutional Decolonization: Jamaica 1944 to 1962”, argues that the real founding fathers of these constitutions were not the Nigerians, Jamaicans and Bahamians, but the British who promoted the model to their former colonies.  Similarly, the noted constitutional lawyer, Berthan Macaulay, QC, argued that the Westminster constitutional model is an attempt by the British to “implant the legal form, conventions and understandings and governmental history of an alien people into ex-colonial societies, and expect them to grow overnight without regard to the conventions, understandings and history of the local people... In their inflexible form these constitutions leave much room for those who seek absolute power, or whose goal is the achievement of almost unlimited power, in short, dictatorship.”

The present constitutional review will provide the entire Bahamian civil society an opportunity to shape and model a constitution in our own image.

As we review the Constitution of The Bahamas, we should learn some lessons from the constitutional practice of the United States of America.  The Constitution of the United States, adopted in 1789, is the oldest written constitution in our hemisphere.  It is a living document, given new meaning and vitality under ever-changing conditions through Supreme Court decisions and formal amendments.  It extends its protection to all persons in the territory of United States, citizens rich and poor as well as aliens.  In establishing a national government, the United States’ constitution sets up three branches and provides mechanisms for them to check and balance each other.  It balances central federal authority with dispersed state-reserved power.  It protects the citizenry from the government and gives the power of judicial review to the judicial branch of government.

The limitations of the original United States constitution are very apparent from a brief historical review.  In 1789 when the constitution was founded, African Americans were still in slavery and, as property, were not considered as full citizens.  However, there has been a continued process of correction, through constitutional amendments, judicial decisions, legislation and executive measures to create a more perfect democracy in the United States, as the society moved from an agrarian to an highly industrialized nation.  The first 10 amendments of the United States constitution were passed in 1791.  The 13th Amendment, adopted in 1865 immediately after the Civil War, abolished slavery.  The 14th Amendment, adopted in 1868, gives citizenship to all persons born in the United States and guarantees due process and equal protection of the laws.  Bahamians who had children in the United States, such as the parents of Sir Sidney Poitier, were and are the beneficiaries of this provision.  The 15th Amendment, adopted in 1870, guarantees the right to vote irrespective of race, color or previous condition of servitude.  Up until 1971, the United States constitution had been amended 27 times.

Similarly, our sister Caribbean countries have also been trying to bring their constitutions in line with the shared expectations and aspirations of their contemporary societies.

Constitutional reviews have been undertaken and amendments proposed or effected, for example, in Barbados, Belize, Dominica, Grenada, Guyana, Jamaica and Trinidad and Tobago.  Guyana and Trinidad and Tobago have totally replaced their independence constitutions.

After 39 years of constitutional practice in The Bahamas, it is now time that we examine our constitution to determine if it conforms to the demands and expectations of contemporary Bahamian society.  Does the Bahamian constitution reflect the contemporary shared expectations and experiences of the Bahamian community today?

 

• Alfred Sears is an attorney and a former minister of education, and chairman of the Council of The College of The Bahamas.

Aug 16, 2012

thenassauguardian

...what were the salient issues facing those charged with shaping our constitution as we moved to independence ...and how were those issues reconciled?

The independence series, part 1

Consider This...

By Philip C. Galanis

Tomorrow we celebrate the 39th anniversary of Bahamian independence. The Commonwealth of The Bahamas was established by an act of the British Parliament which was passed on June 20, 1973 and took effect in the early hours of July 10, 1973, when thousands on Clifford Park witnessed for the first time the raising of the Bahamian flag after the Union Jack was lowered for the last time on this colony, ending 325 years of British rule.

This week, we begin a series of articles on The Bahamas constitution and for part one would like to Consider This... what were the salient issues facing those charged with shaping our constitution as we moved to independence, and how were those issues reconciled?

A natural progression

Bahamian independence in 1973 was a natural progression following a decade of rapid transformation, not just in The Bahamas but also in the Caribbean. In The Bahamas, the constitution twice prominently featured in the body politic, first in 1964 and then again in 1969.

The Bahamas received its first written constitution on January 7, 1964, which granted full control over its internal affairs to The Bahamas government, with the governor retaining responsibility for external defense and internal security. Cabinet government was introduced, and the upper house of the legislature, previously the Legislative Council, became the Senate. The Senate’s membership increased from 11 to 15, while the House of Assembly retained its designation and the number of elected representatives numbered 33. In 1969, the British government turned over the internal and external affairs to the Government of The Bahamas and replaced the office of premier with that of prime minister.

During this period, Caribbean countries were also obtaining independence from Great Britain. It started with Jamaica and Trinidad and Tobago in August 1962. Guyana and Barbados followed in May and November 1966, respectively. The Bahamas was next in 1973 and, by the end of that decade, Grenada, Dominica and St. Lucia had also gained their independence from Great Britain.

We can appreciate that the fervor for national independence for Caribbean (and African) countries was inextricably tethered to nationalistic and socio-political realities of the era, aided by Great Britain’s willingness to release its grip on the empire, upon which the sun was said never to set. For The Bahamas, the movement to independence was a natural progression, propelled by the “trade winds” of the time.

The independence conference in London

The general election of September 1972 was contested with the understanding that a victory for the Progressive Liberal Party (PLP) would begin the process of national independence for The Bahamas. It won and Loftus Roker was appointed to liaise with the official opposition Free National Movement (FNM) regarding matters relative to the Independence Conference before going to London.

Therefore, beginning in early December 1972, the PLP, headed by Sir Lynden Pindling, and the FNM, headed by Sir Kendal Isaacs, led a delegation to London to discuss an independence constitution with the British government.

Because The Bahamas already had the 1964 and 1969 constitutions, there was no need to start afresh so 90 percent of the issues regarding independence were agreed upon by both political parties before leaving for London.

The mood of the Bahamian delegation was upbeat and the talks were conducted in a very congenial atmosphere. Several of the delegates to the Constitutional Conference have noted that the drafting of the constitution was a moment in time where the PLP and FNM worked harmoniously, notwithstanding several philosophical points of departure.

One of the early issues discussed at the Constitutional Conference was Bahamian citizenship. The British attempted to persuade the delegation to accept the precedent that had been established by other colonies; that is, for British citizens and “belongers” living in the colonies to register at Government House, so that, at independence, they would automatically become Bahamian citizens. The Bahamian delegation unanimously objected to this, arguing instead that citizenship should not be so open-ended, and that there should be a process by which citizenship would be determined by the government. The Bahamian delegation was adamant and united, and the British relented and accepted the Bahamian position.

Another area of disagreement surrounded gender equality. The PLP proffered that full equality for women should not be enshrined in the constitution. The FNM argued the opposite view. Ultimately, the British government agreed with the PLP’s position.

There was a discussion on the issue of rustication and the freedom of movement and the right of Bahamians to leave The Bahamas. Some in the PLP expressed the concern that Bahamians might depopulate the Family Islands and were also concerned that, in the absence of a rustication provisions, the country could suffer a brain drain. This fuelled the debate about giving Bahamians the right to leave not just their native islands but the country. The British agreed with the opposition on this issue, and consequently there were no prohibitions on Bahamians’ ability to move freely within or outside The Bahamas.

With the issues fully aired and agreed, Sir Kendal Isaacs and the FNM delegates returned to The Bahamas. Some of the PLP delegates, including Sir Lynden, remained in London to finalize the terms upon which the new Bahamian constitution would be presented to the British Parliament. The delegation understood that the British Parliament would introduce and pass that all-important Bill for an Act to grant Independence to The Bahamas.

The surviving signatories of the Bahamian constitution are: Sir Arthur Foulkes, Arthur D. Hanna, Sir Orville Turnquest, Paul L. Adderley, A. Loftus Roker, George A. Smith and Rev. Philip M. Bethel. Deceased signatories included Sir Lynden Pindling, Sir Milo Butler, Sir Clement Maynard, Rev. Carlton E. Francis, Sir Kendal Isaacs, Cadwell C. Armbrister, Henry J. Bowen and Norman S. Solomon. Although there were other Bahamians present at the conference who were not part of the official delegation, these 15 signatories to the Bahamian constitution should rightly be recognized as our nation’s Founding Fathers.

Post-conference activities

After returning to The Bahamas, the government developed the country’s flag, the coat of arms and the national anthem. It is worth noting that the official opposition was not consulted on any of these matters.

After the Constitutional Conference, the government engaged in the most impressive public relations exercise ever conducted in Bahamian history. There was a massive national campaign to inform civil society and the Bahamian people about what independence meant to the country. The post-conference activities were spearheaded by George Smith, who was the parliamentary secretary in the Office of the Prime Minister and headed the Independence Secretariat.

In the early hours of July 10, 1973, the Commonwealth of The Bahamas was born.

Conclusion

There is no doubt that the men who assembled in London to frame the constitution of the Commonwealth of The Bahamas 40 years ago performed as impressively as the American Founding Fathers who assembled in Philadelphia in 1787 to craft that country’s constitution. The Bahamian delegates to the London Constitutional Conference are to be applauded for their superlative efforts in drafting a social contract which has served us these past 39 years.

In the weeks ahead, we will examine key articles of the constitution that have guided our ship of state. We will also consider some of the issues that should be addressed in amending our constitution, hopefully before we celebrate the 40th anniversary of a nation that was born on July 10, 1973.

• Philip C. Galanis is the managing partner of HLB Galanis & Co., Chartered Accountants, Forensic & Litigation Support Services. He served 15 years in Parliament. Please send your comments to: pgalanis@gmail.com

Jul 09, 2012

thenassauguardian

Caribbean Blog International

On February 27, 2002 — exactly 10 years ago today — Bahamians went to the polls in the country’s first referendum... ...A decade after that vote, The Bahamas is still behind many in the so-called civilized world in some respects... ...By voting "no" Bahamians ensured that the country remained in the archaic position of having discriminatory language in its Constitution

A cause for change

Bahamas should revisit issues in failed 2002 referendum

By Candia Dames
Guardian News Editor
candia@nasguard.com

There’s an interesting saying in the tropical Southeastern Asian country of Burma: A woman can be equal to a man in all ways, but she must first die and come back as a man. In the 21st century, it would appear that this very saying could be applied right here in The Bahamas.

On February 27, 2002 — exactly 10 years ago today — Bahamians went to the polls in the country’s first referendum.

They were asked by Prime Minister Hubert Ingraham to vote to change the Constitution to eradicate language that made men superior to women.

But in results that Ingraham later admitted "shocked and shamed" him, an overwhelming majority of the voters — women included — voted against the historic change. It was an interesting outcome indeed for a people who have for a long time prided themselves on being among the most progressive in the Western Hemisphere, at least as far as civil liberties are concerned.

A decade after that vote, The Bahamas is still behind many in the so-called civilized world in some respects. By voting "no" Bahamians ensured that the country remained in the archaic position of having discriminatory language in its Constitution.

The results also appeared contradictory to the fact that The Bahamas’ record on the treatment of women and the role of women in society has been a commendable one.

The prime minister’s commitment to improving equality of the sexes was a plank in his campaign platform in 1997.

Ingraham noted in 2002 that for far too long, the Constitution has held double standards; a state of affairs that for too many years deprived the children of Bahamian women, married to foreign nationals, of citizenship; and denied the foreign-born spouses of Bahamian women the right to be registered as Bahamians, a right granted by the Constitution to the spouses of Bahamian men.

There is a classic example of a family negatively impacted by that constitutional provision. The late Dr. Mary Ritchie, a Bahamian woman, married a Trinidadian and they moved to The Bahamas before independence in 1973. The couple’s children who were born before independence automatically became Bahamians. But their children born after 1973 had to obtain work permits to be legally employed there.

Timothy Donaldson, a former Bahamian senator and the country’s former ambassador to the United States, said he has always been "incensed and ashamed" by the constitutional language in this regard. Donaldson was an advisor to the Pindling government during the constitutional negotiations in London.

"To me it’s just not right," Donaldson said. He explained that the thinking of then Prime Minister Pindling was that the provision would ensure that Haitians would not eventually take over The Bahamas which at the time had a population of only about 220,000 and today has a population of well over 300,000.

The country has long been burdened by an ongoing influx of Haitians who come to the country in rickety sea crafts, fleeing the unstable political regime in their poverty-stricken nation.

The Haitian presence in The Bahamas has continued to expand over the decades.

Between 1970 and 2010 births to Haitian mothers in The Bahamas nearly doubled, jumping from 7.2 percent to 13.7 percent, according to a new report released by The Department of Statistics.

"Pindling said ‘These Haitians produce like rats’," Donaldson said. "He said they’re going to produce all those children and at some point in time, the Haitians will outnumber Bahamians. But when you make a law geared at just one particular group of people, it’s certainly not a good policy."

The inequality clause is an entrenched provision of the Constitution. These provisions deal with the fundamental rights and freedoms of people as citizens, establishment and powers of Parliament, the cabinet and judiciary. Entrenched provisions can only be changed by 3/4 vote in Parliament, which happened in 2002, and a majority vote by the people in a referendum, which did not happen. To add provisions to the Bahamian Constitution also requires a referendum. The 2002 referendum sought to both change provisions and add clauses to the Constitution which was written in 1972.

Parliamentary exchange

The inequality issue, undoubtedly the most contentious, was not the only question posed to the Bahamian electorate in the referendum: Initially, the following questions were crafted by legislators.

1 - Do you approve of a Teaching Service Commission?

2 - Do you approve of an Independent Parliamentary Commissioner?

3 - Do you approve of the creation of an Independent Boundaries Commission?

4 - Do you approve amending the Constitution to increase the normal retirement age of judges from 67 to 72 for the Supreme Court, and up to 75 for the Court of Appeal justices? and,

5 - Do you approve amending The Constitution to permit the foreign spouse of a Bahamian citizen to reside and work in The Bahamas for the first five years of marriage, and thereafter entitled to citizenship?

6 - Do you agree that all forms of discrimination against women, their children and spouses should be removed from the Constitution and that no person should be discriminated against on the grounds of gender?

Ingraham made the announcement in the House of Assembly on December 6, 2001, informing members that it was the government’s intention to have the referendum on the same day as the next general election so that The Bahamas could "kill two birds with one stone".

"Election time is the time when you are likely to get the maximum number of persons to participate in the process," he said, "and so it is our intent to hold a referendum on the same day as the election."

On December 6, 2001, Ingraham drew attention to the discrimination question and gave it an early highlight as the key issue in the upcoming referendum.

"The one dealing with discrimination against women is fundamental and we propose to move that and as I understand it, there is consensus in the House in support of that particular amendment," Ingraham said. He told Parliament that he had in hand letters from the leader of the opposition, Perry Christie, and the only third party member in the House at the time, Dr. Bernard Nottage, that registered their support.

By the afternoon of December 20, 38 of the 40 members of the House voted on a sweeping amendment to the Constitution to abolish discrimination against women, their children and spouses.

"At last, 28 years following our independence, we are acting to remove from the supreme law of our land constitutionally-mandated discriminatory provisions against 50 percent of the population of The Bahamas," the prime minister said. "This is heavy stuff."

On January 16, members of the House of Assembly — with the exception of Dr. Nottage — approved the package of constitutional bills. Before his vote, Christie had this to say:

“We are headed for general elections. Those of us in the opposition have a view of what is fair.  If we regard the process [of the referendum] as unfair, then this is what will happen.  We will criticize and go to the country on the basis that this is an illegitimate course of action being advocated and you should not participate or you should vote no.”

A failed process

A month of public debates on the approaching referendum gave way to Referendum Day. What appeared to be a valiant and noble effort by the government to bring The Bahamas in compliance with international conventions that it endorsed, turned into a national debacle.

On all five questions, the majority of voters voted no

• Creation of an independent election boundaries commission.

Valid "Yes" 30,903

Valid "No" Votes: 57,291

• Creation of an Independent Parliamentary Commissioner.

Valid "Yes" 30,418

Valid "No" Votes: 57,815

• Gender discriminating language will be removed from the constitution and if children born to Bahamian mothers and foreign fathers will have Bahamian citizenship.

Valid "Yes" 29,906

Valid "No" Votes: 58,055

• The retirement age of judges will change from 60 to 65 years of age and 68 to 72 for appellate court judges.

Valid "Yes" 25,018

Valid "No" Votes: 60,838

• The creation of a commission to monitor the standards of teachers nationally.

Valid "Yes" 32,892

Valid "No" Votes: 55,627

For the opposition, the resounding no votes amounted to a great victory.  The Progressive Liberal Party celebrated the win as if it were celebrating election victory.

“The clear and unmistakable signal that the Bahamian people telegraphed yesterday is that they do not want any government messing with “their things” unless they, the people, are fully included in the process of constitutional reform from start to finish — and that the process of constitutional reform must never be rushed,” Christie said the morning after the vote.

The day after, Prime Minister Ingraham — who had called the referendum his last major agenda as leader of the country —  stunned many Bahamians when he said he was “ashamed” that Bahamians rejected his proposed amendments to the Constitution.  He also told reporters that he was “mistaken” when he declared that the party that won the referendum would win the general election.

“I have no regrets whatsoever,” he said.  “People are perfectly entitled to accept or reject any proposition put to them and they rejected this proposition.  I accept that this is their entitlement.  I move on.  I am ashamed, but I accept it.  That is the will of the people.”

When he returned as prime minister in 2007, I asked Ingraham at his first press conference after his re-election whether he was minded to re-visit the 2002 referendum questions.

Ingraham said there will be no more referenda under his watch.

But the prime minister has been known to change his mind.

In 2010, he advised that if re-elected his administration would hold a referendum so Bahamians could decide whether they want gambling legalized.

Whatever government is elected this year ought to take another look at the discriminatory questions in our Constitution.

Perhaps in a less politically charged atmosphere, we could finally succeed in making the necessary changes.

Feb 27, 2012

thenassauguardian

Caribbean Blog International