About The Hawkesbill Creek Agreement (HCA) - 04th August, 1955 - The Bahamas
POLICY ADVICE NOTE: 307-2026: THE SUBTLE JURISPRUDENCE OF THE HAWKSBILL CREEK AGREEMENT
By Professor Gilbert Morris
PART I:
A constitution cannot be read like a stop sign. The Hawksbill Creek Agreement is the most advanced, subtle expression of jurisprudence in the history of the Americas and in The Bahamas; and requires a curious intellectual that does not mistake the obvious for the most real.
It has explicit and implied nuances and trace elements that must be read from different sections as substrate logic. "Grandfathered" is one of these substrate markers and here it means “continued in force”, as existing law, across a change or changes to constitutions. This is basic.
Therefore, record needn’t be explicit as literalists expect. They must learn to read organically. The record shows the Agreement surviving 1964, 1969 and 1973 through general continuity provisions. The case law substantiates this: therefore we know the Agreement survives because of the case law…so that if we don’t see it, it is we who are blind. That is what precedent does in the interpretative process in Jurispudence.
Here are the signposts:
* 1955 origin. The 1960 amending Act describes itself as supplemental to a Principal Agreement dated 4 August 1955, made by the Acting Governor, Gardner-Brown. The Statute Law lists the Agreement and its amendments as Chapters 261 through 265.
* 1963. The Bahama Islands (Constitution) Act 1963 is the parent statute: the 1969 Order was made under its section 1, and so was the 1973 Independence Order.
* Adaptation to ministerial government. Clause 14 of the 1966 amending agreement required that "Order in Council" and "Colonial Secretary" be read as "Order by the Governor" and "Secretary to the Cabinet". The Agreement thus adjusted itself to the 1964 constitution by contract.
* 1969." Hawksbill Creek" appears in constituency descriptions originally made under the 1969 Constitution, which is only a geographic boundary.
* 1973. Revoking the prior Order does not affect laws continued under it. Existing laws are construed with whatever modifications bring them into conformity with independence. Article 30 provides that written laws enacted before 10 July 1973 cannot be held inconsistent with Articles 16 to 27, the property protection of Article 27 included.
Because the Agreement is scheduled to statutes, it qualifies as "written law." Things an obvious reference which most people miss as they don’t know how to read constitutions. Article 30 treats any instrument having the force of law as written law, so the 1955 grant and its pre-independence amendments sit inside that shield. This is also constitutive.
Article 30 also excludes regulations or executive acts made after 9 July 1973 under such laws. Later instruments therefore stand outside the shield.
The preservation of the Hawksbill Creek Agreement in the law of the Bahamas is real…and taken in its generality. The Agreement is an existing law under Independence Order section 4 and Article 30, protected by Article 27 and amendable by rules within the agreement itself. This is confirmed by Privy Council cases and a 1973 Royal Commission.
