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THE BAHAMAS CONSTITUTIONAL REVIEW COMMISSION PRELIMINARY REPORT & PROVISIONAL RECOMMENDATIONS 2006














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Bahamian Constitution in Review 
















THE BAHAMAS CONSTITUTIONAL REVIEW COMMISSION
PRELIMINARY REPORT & PROVISIONAL RECOMMENDATIONS 2006
Royal Victoria Gardens East Hill Street, Nassau, Bahamas - March, 2006


Foreword

i. The members of the Commission are acutely aware that
this report does not constitute the completion of its review of the Constitution.

It is only a preliminary report, and its suggestions are not yet recommendations which will be contained in the Final Report. There is to be a further round of public consultation on the suggestions and ideas contained in this report before the Final Report will be submitted to Government. That Report will contain in greater detail the Commission’s reasoning for its recommendations as well as fuller treatment of the public’s submissions.

ii. Although the Commission has given careful thought and
consideration to the many views canvassed, this report is not a simple
recording or reporting of the views of Bahamians who participated
in the review process. To be sure, it contains a distillation of public
opinion, but this is refracted through the lens of the Commission.
This is as it should be, for constitutional principles cannot be shaped
by majority views alone. Constitutions are frequently concerned
with the protection of individual rights and freedoms, and the control
of arbitrary political power in a democracy.

iii. This is not to suggest, however, that there was any consensus
of opinions or homogeneity of thought emanating from the
public. The Commission was pleased to find a diversity of thinking
and a liberal tolerance for contending views that can only be representative
of a vigorous and robust democracy. Neither was there
unanimity of thought among the members of the Commission.
Although the Commission was able to produce a unified report,
members expressed dissenting views on those areas where their
views differed strongly from those of other members.

iv. Members of the Commission were at pains throughout the
review process to explain that the primary purpose of the questions
in the booklet “Options for Change” was to stimulate discussion.
Thus, the Commission does not attempt to answer each of the
questions posed, but merely hopes to paint with a broad brush and
deal with the essential issues. It realizes that many consequential
amendments, both within the new constitutional document itself and
related legislation, will be necessary if the Commission’s suggestions
become recommendations and are implemented. In the main,
these consequential changes are not dealt with here, and have
been deferred to a later stage of the constitutional review process.

v. The Commission hopes that its report is received as a document
that proposes positive changes for those aspects of our
Constitution that have been found to be defective or lack merit, and
leaves intact those portions which have served us well. Those who
were expecting a wholesale rewriting of the Constitution or radical
departure from some of the fundamental principles and conventions
of Westminster government will be disappointed. In developing its
provisional recommendations, the Commission was guided by its
terms of reference, which required it to retain the system of parliamentary
democracy.

 

 

SECTION 1

Major themes which arose in consultations
and Public Meetings

1.1 In this section, the Commission encapsulates the main
subjects and concerns addressed by the public and their thinking on
these issues. Many of these matters are elaborated on in the following
chapters.

1.2 Throughout its consultations, several topics and issues
arose with sufficient recurrence and preeminence to be considered
as themes. It is likely that some of these viewpoints were influenced
by the questions posed in the booklet “Options for Change”,
the political platform indications for constitutional change, and the
2002 Constitutional Referenda Acts. But the Commission is also
convinced that many had their origin in the common experience and
shared perception of Bahamians, from vastly different social, economic
and educational backgrounds. Several of these concerns
are, strictly speaking, outside the remit of a constitutional review
exercise. But they come within the context of general political or
governmental reforms, and hence share a close affinity with the
functioning of the constitutional and basic legal order of society.

1.3 Some of the common themes, which are not presented in
any order of precedence, are as follows:

The early town meetings of the Commission held in New
Providence and the Family Islands were dominated by a discussion
of the Preamble, and there was unanimous support for retaining the
Preamble in its current form. This single topic would have controlled
the agenda of the town meetings had the Commission not come to
an early recognition that the people would support no change to the
Preamble. A policy decision was taken by the Commission to reassure
audiences of this position, and steer the discussion away from
an inordinate focus on the Preamble.

By and large people felt the enormous powers of the Prime Minister,
whether real or perceived, had to be limited without affecting the
Prime Minister’s authority. It was their view that there should be
greater opportunity for the involvement of civil society before the
exercise of executive power.

There were many criticisms leveled at the devotion to duty provided
by some Members of Parliament, and many persons expressed the
view that there should be some system for penalizing or recalling
delinquent representatives.

Generally, there was not any great dissatisfaction with the basic
system of parliamentary democracy and the two-chambered
Parliament (elected House of Assembly and appointed Senate.)
However, there was widespread agreement with the need for reform
of the Senate to make it a more mature representative body with
membership drawn from broader segments of the community.
Many persons expressed the view that the Senate should be an
elected body, but without altering its powers; others felt that some
Senators should have security of tenure.

There were mixed feelings about the retention of the Queen of
England as Queen of the Bahamas and Head of State of The
Bahamas. There was a significant number of persons who
expressed no opinion as to the institution of Monarchy; there were
others who were of the opinion that the status quo should remain,
while others were of the view that this link to the British Monarchy
was inconsistent with Bahamian independence and sovereignty and
should be severed while preserving membership with the
Commonwealth of which the Queen is symbolic Head.

There was overwhelming support for equality between the sexes
and for the removal of any form of discrimination on the grounds of
sex or gender, especially with regard to the ability of a married
Bahamian woman to transmit citizenship to her child born outside
the Bahamas. So far as acquisition of citizenship by marriage is
concerned, the majority of persons felt that acquisition should not be
automatic for either non-Bahamian males or females, and that a
waiting period would be appropriate for both. There was wide
divergence between persons regarding the time period for the grant
of citizenship ranging from those who preferred 5 or 10 years, to
those who said “never” and others “automatic” on marriage.

There was wide support for the elimination of discrimination on the
basis of sex or gender with respect to citizenship but almost unanimous
opposition and rejection of the concept of same-sex marriage,
in the face of a determined minority committed to the concept of
absolute non-discrimination. Emerging out of this discussion, the
majority of persons would wish Bahamian law of marriage as a
union between a man and a woman to be enshrined in the
Constitution.

There were concerns generally over the need for greater participation
of civil society in the process of governance, and for
Governments to be more overtly accountable to the people for their
policies and actions and more forthcoming.

There was a common concern that the government did not have
command of the immigration situation, and most people thought to
some degree this was linked with the state of the citizenship and
immigration laws. In particular, there was concern over the status
of children born in the Bahamas to non-Bahamian parents.

A large number of Family Island persons resonated a call for greater
autonomy in Local Government and for the Constitution to specify
the relationship between the Central and Local Government. A realistic
study of the governmental needs of the more developed islands
and the less developed should be undertaken.

 

SECTION 2

GENERAL FEATURES OF THE CONSTITUTION
Enactment of the Constitution

2.1 The method by which the new Constitution will enter into
force was not a subject that attracted the attention of a significant
number of persons. This is understandable because it raises highly
sophisticated defining issues of politics, law, national identity,
emotion, symbolism and sovereignty. At the heart of the matter is
how we would disengage ourselves from our imperial past.

2.2 There is a persuasive constitutional argument to be made
for the enactment of the new Constitution by amendment, as an
enactment by statute law of The Sovereign Bahamian Parliament
would be said to be symbolic only.

2.3 On the other hand, the technical remote possibility that the
United Kingdom Parliament would repeal the Order in Council conferring
Independence on the Bahamas is a remote possibility verging
on the impossible; the Order remains a device structured, not by
Bahamians, but by an Imperial power. Symbolic though it might be,
should not the Constitution of the Bahamas be a product of
Bahamians?

2.4 Both the Jamaican Constitutional Reform Report in 1995
and the Barbadian Constitution Review Commission in 1998 opted
for an enactment by their Sovereign Parliaments. In the case of
Jamaica, the Commission suggested that the British Government
be invited to revoke the Jamaican Independence Order simultaneously
with the coming into force of the new Jamaican Constitution.



Provisional Recommendation(s)

(1.) The Commission recommends that reforms to the
present Constitution be achieved by repealing the Order-in-
Council (Bahamas Independence Order) to which the
Constitution of the Bahamas is scheduled, and simultaneously
replacing it with an Act of the Parliament of The Bahamas entitled
the Bahamas Constitution Act, subsequently approved by
Referendum.

 

 

The Preamble

2.5 One of the most riveting topics during the early phase of
the public debate on constitutional reform was the wording of the
Preamble. Indeed, it is correct to say that, with the possible exception
of the discussion revolving around sexual orientation and citizenship
in the immigrant context, no other aspect of the Constitution
came close to generating the kind of attention as the Preamble.

2.6 At issue was the question of whether consideration should
be given to changing the Preamble to avoid any appearance of a
constitutional bias towards Christianity, notwithstanding the substantive
guarantees of freedom of religion in the fundamental rights
provisions.

2.7 As far as its approach to religion is concerned, it might be
said that the Preamble is all-embracing and does not necessarily
favour any particular religion. The Commission, is not of the view
that the reference to “Christian values” is exclusionary of or discriminatory
against other religions. Even if it could be interpreted as
being pro-Christianity, there could be nothing wrong with the
framers of the Constitution stating in the Preamble what they
thought should be the defining spiritual basis of the State. The
important thing is that the Constitution itself guarantees freedom of
religion to all, which is unimpeded by anything in the Preamble.



Provisional Recommendation(s)

(2.) The Commission recommends that the Preamble be
retained in its current form and that no amendments be made
to its content.

 

 

Directive Principles of State

2.8 In the exercise of our function as Constitutional
Commissioners, we considered whether the Bahamas ought to
adopt the concept of directive principles of state or directive principles
of social policy, which have been adopted in several European
countries, a Commonwealth country and at least one Caribbean
country (i.e) Austria, France, Germany, Ireland, Spain, India and
Guyana). The Barbadian Constitutional Review Commission recommended
that a broad statement of principles defining the general
policy framework within which Barbados would be governed
should be included in the reformed Constitution of Barbados. The
Commission will give further consideration to whether or not similar
principles should be included in the reformed Bahamian
Constitution. Attached as an Annex is a sample of such principles
recommended by the Barbadian Report of their Constitutional
Review Commission.

 

 

Amending the Constitution
Entrenchment devices

2.9 The majority of the provisions of the Constitution of The
Bahamas can only be changed by an act of the Legislature with a
2/3 or ? majority and supported by referendum. Significantly, these
entrenchment devices also extend to provisions of the
Independence Order and the Independence Act. A noted
Caribbean constitutional scholar, Francis Alexis, has pointed out
that the purpose for the entrenchment devices was to ensure that
changes to the Constitution could “not be brought about by accident”.

2.10 Consideration has to be given to the question of whether
there should be removal of certain Articles of the Constitution or
what new provisions should be added to the list of entrenched
Articles for example, (i) the right to Vote, (ii) Leader of the
Opposition (Not now entrenched) or (iii) that the Bahamas be a
Democratic Parliamentary Republic.



Provisional Recommendation(s)

The Commission is of the view that there is a need for greater
in depth study and wider consultation on these entrenched
provisions before any specific recommendations are made
which ought not to be done until all significant Articles of the
new Constitution are agreed to be recommended.

 

 

SECTION 3

SPECIFIC CHAPTERS OF THE CONSTITUTION

Chapter I: Supreme Law Clause
The Supreme Law Clause

3.1 The importance of the supreme law clause is that it specifically
declares the primacy of the Constitution, although the case
law indicates that even without such a specific declaration the
Constitution would be supreme. There are two very important consequences
that flow from this: firstly, it creates a system of constitutional
supremacy, where Parliament is subject to the Constitution,
as opposed to the British system of Parliamentary supremacy.
Second, it provides the written basis for the superior courts to
review and question the legality of primary legislation against the
standard of the Constitution at the request of an aggrieved person.



Provisional Recommendation(s)

(4.) The Commission recommends the retention of the
Supreme Law Clause. Any person (whether aggrieved or not),
with the leave of the Court may be given the right to challenge
the validity of any law in the Court which may be ultra vires the
Constitution and given such declaration and redress as may be
appropriate.

 

 

Chapter II: Citizenship

3.2 The principles which are to govern the grant of citizenship
in a small country occupying the geo-strategic space of The
Bahamas must be carefully conceived. They must be conceived
with compassion for the rights of others and regard for international
legal principles, but realistically to protect our identity and culture as
Bahamians. The issue which consumed the people most was who
should be made citizens under the Constitution.

3.3 It appeared to be the view of the majority of those who
expressed opinions on the Constitution that gender bias, wherever
it applies to the acquisition or transmission of citizenship, should be
removed.


Provisional Recommendation(s)

(5.) It must be ensured that every person who at the commencement
of the Constitution was a lawful citizen of The
Bahamas should continue to be a citizen. It should also be
ensured that no person with vested rights with respect to citizenship
should have that right adversely affected.

(6.) Different treatment accorded to non-Bahamian spouses
of Bahamian citizens, or gender discrimination should be
deleted from relevant provisions of the Constitution. The
Constitution should provide that non-national spouses of
Bahamian citizens should be treated equally. Such persons
upon marriage should have a right to reside and work in the
Bahamas and own property jointly and upon application the
right to become a Bahamian citizen 5 years after marriage subject
to such exceptions or qualifications as may be prescribed
in the interests of national security or public policy.

(7.) The Commission recommends that the Constitutional
provision which provides for children born outside The
Bahamas to married Bahamian men have automatic Bahamian
citizenship, should also provide for children born outside the
Bahamas to married Bahamian women (regardless of the
nationality of their spouse) to have the same automatic entitlement
to citizenship.

(8.) With respect to the position of children born in The
Bahamas to non-Bahamians, the Commission recommends
that the waiting period be 18 years of permanent residence.
This provision should import the international law criteria of
the “genuine link” for the applicant to qualify for registration.
These changes would ensure that only those persons who are
able to demonstrate that their attachment, in terms of their family,
social relations, and other interests are in the Bahamas and
not elsewhere would qualify. The Commission recommends
that persons born in the Bahamas neither of whose parents is
a Bahamian should be entitled to citizenship upon attaining the
age of 18 provided that the person was ordinarily resident in
the Bahamas for a period of not less than 10 years immediately
prior to his attaining the age of 18 subject to such exceptions
or qualifications as may be prescribed in the interest of national
security or public policy. This right to citizenship should be
lost if no application is made before the person attains the age
of twenty-one.

(9.) With respect to the ability of children born in The
Bahamas to acquire citizenship if either parent is Bahamian
(the situation described by Article 6 of the Constitution), a proviso
should be added to make it clear that the entitlement to
pass on citizenship applies equally to both parents, except that
proof of paternity is required where the unmarried parent is a
Bahamian male. That parent must prove paternity by means
of a Declaration of Paternity from the Supreme Court as prescribed
by Parliament.

(10.) The position of children born outside The Bahamas to
unmarried Bahamian parents, male or female, should be the
same and should provide for the automatic acquisition of citizenship,
subject to proof of paternity in the case of the
Bahamian male by a Declaration of Paternity from the Supreme
Court as prescribed by Parliament. If men and women are
granted the same ability to transmit their citizenship, and the
citizenship provisions proclaim true gender equality, it would
eliminate the need to equate the status of an unmarried mother
to that of a father, in respect of children born outside The
Bahamas.

(11.) The position with respect to dual citizenship or nationality
should be stated, and persons who are eligible for
Bahamian citizenship should not be denied registration simply
because they possess another nationality. However, renunciation
of another citizenship should be made a condition-precedent
to the grant of citizenship.

 

 

Chapter III: Fundamental Rights and
Freedoms

3.4 It was no surprise to the Commission that the fundamental
rights provisions in the Constitution attracted significant debate and
discussion. From the perspective of the citizen, this must be the
most important feature of the Constitution. The most interesting
debate focused around the non-discrimination clause, in particular
the apparent uncertainty of the Constitution to non-discrimination on
the grounds of sex (or gender).

 

 

Discrimination on the grounds of “sex”

3.5 There is an inherent tension that exists between the preambular
Article 15, which grants certain basic rights to persons
regardless of race, place of origin, political opinions, colour, creed or
sex, and the enumerated rights that follow from Article 16 to Article
27. The conflict arises from the inclusion of “sex” as a basic right
to which a person is entitled in Article 15, and its omission from the
particular article designed to protect against discrimination (Article
26). This leads to the conclusion that the Constitution does not
explicitly prohibit discrimination on the grounds of sex. Article 26
also excludes from the protection against discrimination matters of
personal law (adoption, marriage, divorce, burial, devolution of
property on death) and discriminatory laws “reasonably justified in a
democratic society”. Interestingly, the Status of Children’s Act,
also exempts adoption, inheritance, domicile and citizenship.

 

 

Principle of gender equality

3.6 The Commission can hardly underscore the point that
equality of treatment must be the cornerstone of our Constitution. It
is significant that the bill of rights in the 1999 South African constitution
begins with the simple proclamation that “Everyone is equal
before the law and has the right to equal protection and benefit of
the law.” There can be no room in our Constitution for any omission
that permits persons of the female gender to be treated differently
from those of the male gender.

 

 

The right to vote

3.7 The Commission received several representations for the
right to vote to be enshrined as one of the fundamental rights. It
cannot be denied that the right of a people to vote freely and secretly
to elect their representatives to Parliament is the very bedrock of
democracy. All of the other political powers of the state flow from
this act. The Commission is of the view that the right to vote and to
do so by secret ballot should be enshrined and entrenched in the
Constitution. Obviously, however, it needs to be appreciated that
unlike the other fundamental rights, which are granted basically to
“everyone within the Bahamas” the right to vote is a limited one, and
can only belong to citizens of the Bahamas.

 

 

Freedom of the Press

3.8 The Commission also heard from a number of advocates
for freedom of the press, radio and television media to be included
as part of the principle of free expression. It cannot be denied that
a free and unbridled press is one of the most important institutions
in a democratic society, and may be deserving of constitutional protection.
Freedom of Information

3.9 A corollary of the right of free speech is the right to have
access to public information. The right of free expression embraces
the right to impart and receive information, and thus it is not surprising
that some Constitutions link the right of freedom of information
to that of free speech. Some provide for extensive rights of freedom
of information, such as the South African model, which provides
a right of access to information held by the state. Others do
not elevate it to a constitutional right, but have adopted freedom of
information laws.



Provisional Recommendation(s)

(12.) The Commission recommends that “sex” (gender) be
included in the protected category of enumerated rights in
Article 26 in the definition of “discriminatory”. The
Commission does not agree that “sexual orientation” deserves
special constitutional protection. We support the proposition
that the institution of marriage should be defined in the constitution
as a union between man and woman.

(13.) The Commission does not recommend the elevation of
additional factors such as language, age, handicap or disability
for the non-discriminatory provision of the Constitution.
These factors call for specific, limited protection, by separate
legislation.

(14.) The right to vote in general elections and referenda by
citizens of the Bahamas should be included in the constitution
subject to whatever qualifications that may be necessary.

(15.) The Commission recommends that Parliament prescribe

a Freedom of Information Act.

 

 

Chapter IV: The Governor-General

3.10 It is apparent that the position of the Head of State of The
Bahamas is not seen in reality to be the Queen of Great Britain etc.
who constitutionally is the Queen of the Bahamas too. People
appear not to be troubled by the concept and are apparently satisfied
to regard the Governor-General, although wrongly, to be Head
of State of The Bahamas. The reaction to the proposition that the
Queen is constitutionally Queen of The Bahamas was usually met
with silence.

3.11 The abolition of the English monarch as Head of State of
the Bahamas is part of the evolutionary process toward a truly peoples
Government, not one of the Queen’s Dominions but part of the
Commonwealth. The Commission would wish the Bahamian people
to focus on whether the position of a “foreign monarch” and one
that is shared with many other countries, is reconcilable with the
founding provisions which state that the Bahamas shall be a “sovereign”
democratic state. We cannot on the one hand assert ourselves
as a sovereign country and a free and independent actor in
international affairs while relying on the legal fiction of “Her Majesty
in Parliament” and “Her Majesty’s Government” in the “speech from
the throne” to give legitimacy to our Government.

3.12 It is conceded that in an increasingly interdependent world
the concept of sovereignty as it denotes a self-sufficient national territory
is waning; sovereignty must denote an independent legal entity,
where some supreme body has virtually unlimited capacity to
make-laws. Although the existence and validity of the rules in our
legal system are determined by reference to a written Constitution,
those laws still require the participation of “the Queen-in-Parliament”
to be properly enacted. This is inconsistent with being a completely
independent legal entity.

 

 

A local Head of State

3.13 The time has come for the transition to a Bahamian Head
of State to be elected by both Houses of Parliament. This
Bahamian Head of State would function in a role similar to that of
the Queen’s Representative, the current Governor General, who
now exercises powers on behalf of the Queen of the Bahamas.

3.14 Another curious point about the appointment of the
Governor-General is that there is no requirement for the holder of
that office to be a citizen of the Bahamas. Because of the method
of appointment of the Governor-General, it hardly seems logical that
the person appointed to this office would be a non-Bahamian. To
remove all doubt it should be declared that the Governor General or
Head of State shall be a Bahamian citizen.



Provisional Recommendation(s)

(16.) The Commission recommends that the English
Monarch shall no longer be the Head of State of The Bahamas
and the office of Governor General be abolished. The Head of
State should be a citizen of The Bahamas duly elected for a
term of years by both Houses of Parliament. The Bahamas
should be a Democratic Parliamentary Republic with the Head
of state being the President. Executive Powers shall continue
to be exercised by the Cabinet with the Head of Government
being the Prime Minister.

(17.) The provision of the Constitution which permits the
Chief Justice and the President of the Senate to serve as acting
Head of State should be removed to avoid a conflict of
interest. Deputies should be appointed from among eminent
citizens to fill any vacancies in that office.

 

 

Chapter V: Parliament

Strengthening the institutions of Parliament

3.15 Despite the widespread criticisms of the function of the
Senate, there was general agreement that the bi-cameral nature of
the Parliament should be retained.

3.16 The Commission thinks it a point of substance that the
suggestion to expand the Senate to provide for the representation
of the “islands” was the unique contribution primarily of the Family
Island participants, who were adamant that they should have a
voice in the Senate. This suggestion is reasonable, and while it is
obviously impractical to have individual island representation, this
could be achieved by means of sector representation (northern
islands, central islands, southeastern-islands, southern-islands).



Provisional Recommendation(s)

(18.) The Commission does not recommend any change in
the system by which members of the House of Assembly are
elected. The Parliamentary system should be modified to
make allowance for representation in the Senate by members
without political affiliation from special community institutions,
for example the church, trade unions, professional bodies,
commerce and other major fields of endeavour, although
the Government must maintain the majority. This will necessitate
an increase in the membership of the Senate.

(19.) The Commission recommends that the membership of
the senate should be increased to twenty-three (23) persons.
Twelve (12) senators appointed by the Prime Minister, six (6)
appointed by the Leader of the Opposition and five (5) appointed
by the Head of State acting in his own discretion from leading
citizens in the church, trade unions, professional bodies,
commerce, community organizations and other major fields of
endeavour after consultation with the Prime Minister and the

 

 

Leader of the Opposition.

(20.) It is recommended that the Constitution be amended
to create a truly independent Electoral and Boundaries
Commission and remove the power of the Prime Minister to
modify the report of the Commission. The office currently
styled Parliamentary Commissioner should be the ex-officio
Chairman of that Commission with constitutional protection
and security of tenure similar to the Chairman of the other
Service Commissions together with 3 persons nominated by
the Prime Minister and 3 by the Leader of the Opposition (not
including members of Parliament). Decisions of the
Commission ought to be subject to appeal to the Supreme
Court.

(21.) The Commission does not propose any interference
with Parliamentary privilege of the timeless right of freedom of
speech of Members of the House of Assembly. However, this
freedom is sometimes abused by overt personal attacks on
persons who have no right of response in the House. It is recommended
that the Constitution provide for a written response
from any offended person to be published in Hansard with the
approval of the Speaker to prevent baseless or frivolous
responses.

(22.) The Commission recommends that Parliament prescribe
controls and limits over donations to political parties,
candidates and political campaign expenditure to ensure transparency
and accountability in local and national elections and
fairness in referendum. The Commission suggests that there
be public funding provided by the Government for the cost of
referendum. It is also recommended that these limits apply to
non-Bahamians contributing to parties or candidates.

(23.) The Commission recommends that an Integrity
Commission be established under an Integrity in Public Life
Act, that would serve as a watchdog committee over the affairs
of political and senior civil servants, and which will replace the
Public Disclosure Act. It is recommended that this Integrity
Commission, in addition to some of the provisions from the
Public Disclosure Act, shall provide that Members of
Parliament and Senior Public Officers disclose all business
interests, investments and shares in companies held by them
in which they are beneficial owners.

(24.) The office of Clerk to Parliament, and a Deputy Clerk,
with responsibility for the Senate, should be established by the
Constitution as public offices, with appropriate security of
tenure, and control over their staff.

 

 

Chapter VI: Executive Powers

Cabinet

3.17 The Cabinet of the Bahamas is charged with the direction
and control of the Government of the Bahamas and is “collectively
responsible and answerable to Parliament.” Although this time honoured
tradition may have worked well in the context of British politics,
there are problems with it in the Caribbean. In this regard the
Commission bore in mind the advice of the Wooding Commission
that the executive powers in the Westminster system, especially in
small states, have “a propensity to become transformed……………………………….
in societies without political cultures
which support its operative conventions.”

3.18 The Commission recommends that the committee system,
which operates well in the United Kingdom and the United States,
be utilized to demand greater accountability of Government to the
House of Assembly from where it gets its support.. These committees
should be drawn from the House and they should be given real
powers, with the regular power of House committees (i.e., power to
send for persons and papers etc.). They can be a very valuable tool
in the democratic process if used effectively. These Committees
which have a Government majority ought to be studied in other jurisdictions
for their working in reality and in practice.

 

 

Powers of the Prime Minister

3. 19 Under our system the Prime Minister possesses a plenitude
of powers that range from the ability to appoint (and therefore
some removals) the Governor General, and the appointment of
many senior persons, including senior judicial officers (Court of
Appeal, Chief Justice), Chairmen of most of the permanent commissions,
foreign representatives, Permanent Secretaries,
Commissioner and Deputy Commissioner of Police, etc.

3.20 There was a nearly unanimous call for the reduction of
some of the Prime Minister’s powers of appointment. The
Commission agrees with the suggestion that there should be
reforms in the procedures for the appointment of many of the offices
currently appointed by the Prime Minister. At the same time, while
it is possible to divest the Prime Minister of appointment powers
over judges, it is obvious that he ought not to be divested over the
appointment of the Commissioner and Deputy Commissioner of
Police, as the Prime Minister is ultimately responsible for the security
of the State. New procedures would have to be devised for the
sharing of power by a consultative process.

 

 

Local government

3.21 Although the Government of the Bahamas remains a unitary
one, the archipelagic nature of the country has made some
degree of decentralization and local governance a necessity. The
system of local government is purely statutory, and is established by
the 1992 Local Government Act. This creates a system of District
Councils and Town Committees filled by locally elected officials to
take care of basic administrative duties (e.g., sanitation, public
health, some road works and some revenue collection). Many persons
from the Family Islands voiced concerns about the effectiveness
of this system. Particular criticisms focused around the lack
of power relative to the central government, lack of financial independence
and control over taxes raised, and the overlap of functions
and possibility of political partisanship and control through with
respect to the repair or creation of public infrastructure.

3.22 It was also pointed out that since the system of local government
is a post-independence development, it is not included in
the Constitution. However, since the control of the government is
vested in the Cabinet of the Bahamas, the powers of the local government
authorities, though set out in statute, can only be a form of
delegated power from the executive.

3.23 The Commission has noted that the inclusion of provisions
for local government in the Constitution is an ordinary feature of
constitutions in countries where there is developed local govern-ment.

 

Since one of the functions of a Constitution is to set out the

powers of government, which extends to central government as well

as to intermediate levels of government, the Constitution should

make provisions for local government.

 

3.24 The Commission has given consideration to the role of the

Ombudsman and for the creation of a Public Defender to which the

people would have free access for advice on their rights and the

means of enforcing them. The Commission believes that many of

the potential conflicts which arise between the Government and the

citizen can be dealt with through the agency of a functioning

Ombudsman. The Commission has decided that it is right to raise

the importance of the Ombudsman by giving it Constitutional Status

and giving the position the status of a Supreme Court Judge.

 

 

Provisional Recommendation(s)

 

(25.) The Commission recommends the establishment of a

number of parliamentary committees to have oversight of

areas of ministerial responsibility. This will also enable these

Committees to have access to technical and administrative

expertise from the public service or civil society, who could

bring much needed expertise to the work of these committees.

 

(26.) The Commission recommends that the powers of

appointments by the Prime Minister be amended by transferring

some of those powers to the Head of State, which will be

exercised subject to consultation with the Prime Minister and

with the Leader of the Opposition where appropriate; as well as

joint recommendation by the Prime Minister and Leader of the

Opposition agreed between them.

 

(27.) The Commission recommends the appointment of an

Ombudsman, with constitutional tenure similar to that of a

Supreme Court Judge.

 

(28.) The Commission recommends the creation of the

Office of Public Defender along the similar lines of appointment

and security of tenure given to the Director of Public

Prosecutions.

 

(29.) The Commission has yet to decide whether to make a

recommendation on whether the concept of local government

should be given constitutional recognition.

 

 

Chapter VII: The Judicature

Chapter VII: The Judicature

Chapter VII: The Judicature

Retirement age for judges

 

3.25 The question of extending the service lives of Judges was

one of the issues taken up by the constitutional referendum of 2002.

Provisions were made in The Bahamas Constitution (Amendment)

(No. 9) Act, 2002, to extend the ages of Supreme Court justices

from 65-68, with an extension to 72, and of appeal justices from 70-

72, with a possible extension to 75. The Commission is of the opinion

that the age limit for the retirement of all Justices of the Supreme

Court and the Court of Appeal should be the same and that the limit

should be fixed at age 70 without any extension.

 

3.26 The Commission is of the view that the appointment of

Justices of the Supreme Court and the Justices of the Court of

Appeal should all be made by the Head of State on the recommendation

of the Judicial and Legal Service Commission after consultation

with the Prime Minister and the Leader of the Opposition.

 

 

 

Composition of the Judicial and Legal Services Commission

 

3.27 Consideration should be given to the reform of the composition

of the Judicial and Legal Services Commission. The standing

members are the Chief Justice (Chairman), a Justice of the

Supreme Court or Court of Appeal, the Chairman of the Public

Service Commission, and two other persons, appointed by the

Head of State and nominated by the Prime Minister after consultations

with the Leader of the Opposition. These two nominees must

be lawyers, which creates a rather invidious situation. These members

will participate in the appointment of judges and magistrates,

whom they may be required to appear before, and public legal officers,

who may be their opponents in courts.

 

 

 

Tenure of magistrates

 

3.28 It cannot be denied today that a stipendiary and circuit

magistrate is a part of the judiciary and that a magistrate’s court is

a court or tribunal within the meaning of the Constitution, so as to

be caught by a “fair and impartial” tribunal of law mentioned in the

Constitution.

 

3.29 The appointment of magistrates in the Bahamas is vested

in an independent Judicial and Legal Services Commission, which

implies that their position has constitutional standing. However, it

would certainly put the magistracy on better footing if their security

of tenure was spelt out in the Constitution. The Commission thinks

that it is unsatisfactory for magistrates, who are really at the fount of

justice in this country because they hear the majority of disputes

that eventually reach the courts, should be without some protection.

The same imperatives which demand insulation for superior court

judges against improper influence should also operate in the case

of inferior judges, magistrates, chairman of tribunals and the like.

They should all be covered by similar protection afforded High Court

judges with respect to appointment, pay and terms of service, security

of tenure, and discipline and dismissal. In addition, magistrates

courts should be given specific recognition in the Constitution as

part of the judicial system.

 

 

Provisional Recommendation(s)

 

(30.) The Commission recommends that the retirement age

for Judges of the Supreme Court and Justices of the Court of

Appeal should be 70 in all cases, with no possibility of extension

save to complete outstanding work.

 

(31.) The Commission recommends that the provisions

dealing with the appointment of Magistrates, their appointment

and security of tenure should be dealt with in the Constitution

under the Chapter on the Judicature. The magistracy should

also be given a form of protection of tenure, not necessarily on

par with superior judges, but sufficient to achieve a constitutional

guarantee of independence.

 

(32.) With respect to the appointment of Judges, the

Commission recommends the following procedure:

 

(a) The Chief Justice and President of the Court

of Appeal should be appointed by the Head of

State on the recommendation of the Judicial

and Legal Service Commission after the Head

of State has consulted with the Prime Minister

and the Leader of the Opposition.

 

(b) Other Justices of the Supreme Court should

be appointed by the Head of State acting on

the recommendations of the Judicial and

Legal Services Commission after the

Commission has consulted with the Prime

Minister and Leader of the Opposition.

 

(c) The Prime Minister and Leader of the

Opposition should be required to consult

Senior Members of the Bar and the Bar

Council of the Bar Association before tendering

advice to the Head of State on appointment

of Judges.

 

(33.) The Commission recommends reform of the Judicial

and Legal Services Commission by providing for the members

appointed by the Head of State, on recommendation of the

Prime Minister after consultation with the Leader of the

Opposition, to be non-practicing attorneys.

 

(34.) The Commission does not recommend the abolition of

appeals to the Judicial Committee of the Privy Council at this

time.

 

 

 

Chapter VIII: The Public Service

Chapter VIII: The Public Service

 

3.30 Over the past months there has been much discussion

between the Ministry of The Public Service and other Agencies

on the idea of Public Sector Reform, but no decision has been

made to date.

 

The Commission is therefore of the view that it should not

make any recommendations on this chapter at this time, but

allow a period for greater in depth study based on what action

is taken as a result of those discussions.

Chapter IX: Finance

 

 

Chapter IX: Finance

 

Control of public finances

 

3.31 In approaching this area, the Commission bore in mind

that one of its specific directives was to examine existing institutions

to ensure that they provide for “transparency and accountability in

the expenditure of public funds”. The current system for the control

of public finances, erected by the Constitution and legislation, envisions

a process that starts and ends with Parliament, which may be

conveniently set out as follows: (i) Parliament debates and

approves the annual budget; (ii) the Ministry of Finance and the

Treasurer supervise disbursement of funds, along with the Central

Tenders Board; (iii) the Auditor General receives financial statements

from the Ministry of Finance and conducts his audits of various

department of government; and (iv) the Auditor General submits

his reports to Parliament (via the Speaker) for the scrutiny of the

Public Accounts Committee and debate in Parliament. It is clear

that the Constitution, however, recognizes the Auditor General as

the primary means of the control of public finances, and the mechanism

by which any irregularities are brought to the attention of the

House.

 

 

 

Independence of the Office of the Auditor General

 

3.32 The independence of the Office of the Auditor–General

should be strengthened by making provisions for the independent

funding of that office out of the Consolidated Fund and for the

appointment and control of the staff of the Auditor General’s Office

to be vested in the occupier of that Office.

 

 

 

 

Public Accounts Committee

 

3.33 The Public Accounts Committee should be elevated to

direct Constitutional standing by enshrining that body and its mandate

in the Constitution. The Constitution should declare the relationship

of this body with the Auditor General. Consideration

should also be given to strengthening other components of the public

financial system to ensure that there is efficiency and current (as

opposed to post-facto) mechanisms for control.

 

 

Provisional Recommendation(s)

 

(35.) It is recommended that the Auditor General should

have power to audit the accounts and other financial statements

of all corporations and companies owned or controlled

by the State.

 

(36.) The Public Accounts Committee should be given

Constitutional existence by specifically providing for its establishment

in the Constitution under the chairmanship of a member

of the Opposition in the House of Assembly with a majority

of members of those opposed to the Government.

Chapter X: Interpretation

 

 

Chapter X: Interpretation

 

Interpretation of the Constitution

 

3.34 Article 30 of the Constitution provides for the savings of

existing written law by excluding from the effect of human rights provisions

set out in Articles 16-27 any law “that was enacted and

made before 10 July 1973 and has continued to be part of the law

of The Bahamas at all times since that day.” All pre-independence

laws would therefore not be affected by the Chapter of the

Constitution that provides for the “Protection of Fundamental Rights

and Freedoms”.

 

3.35 The following has been extracted from the report of the

Barbadian Constitutional Review Commission:

“It has been drawn to the attention of the Commission

that the absence of an ‘existing law clause’ in the

Constitution of Belize, drafted in terms very similar to

the Barbados Constitution, has posed no significant

problems in that jurisdiction. The Commission has

also taken note of the fact that Jamaica’s Joint Select

Committee of the Houses of Parliament on

Constitutional and Electoral Reform, in its May 1995

final report recommended the deletion of a similar

clause in the Jamaica Constitution.”

 

The Commission thinks there is some logic in the

experience of Belize, as well as the endorsement by the

Barbadian Commission, and is of the opinion that the deletion

of the savings clause would enable a more certain interpretation

of the Constitution.

 

 

Provisional Recommendation(s)

 

(37.) The Commission recommends the deletion of Article

30 (the savings clause) from the Constitution.

 

 

 

ANNEX

ANNEX

Fundamental Principles and Responsibilities as

recommended by the Report of the Barbadian

Constitution Review Commission for inclusion in the

reformed Constitution of Barbados.

 

See reference under “Directive Principles of

State.” Section 2.8 at page 6 in the Preliminary Report of

the Constitutional Commission.

************************************************************************

 

5.9. Responsibilities of Persons

The Commission recommends that the reformed Constitution

emphasize that it is the duty and responsibility of every person

in Barbados to:

 

5.9.1 obey the law and abide by the Constitution and

respect the ideals which it enshrines and the institutions which

it establishes;

 

5.9.2 exercise that person’s rights in a manner which

respects the rights of others;

 

5.9.3 cooperate with lawful agencies in the maintenance of

law and order;

 

5.9.4 respect the National Anthem, the National flag, the

National Pledge and all National Emblems;

 

5.9.5 register for electoral and other lawful purposes;

 

5.9.6 defend the country and render national service when

necessary;

 

5.9.7 value and preserve the rich heritage of Barbadian culture;

 

5.9.8 create and maintain a clean and healthy environment

and have compassion for living creatures;

 

5.9.9 participate in the economic, political and social life of

Barbados;

 

5.9.10 contribute to the well-being of Barbados to the best of

that person’s ability;

 

5.9.11 strive towards excellence in all spheres of individual

and collective activity, so that the Nation constantly rises to

higher levels of endeavour and achievement;

 

5.9.12 promote harmony and a spirit of unity among all

the people of Barbados, transcending religious, sectoral or

racial diversities, and abstain from practices derogatory to the

dignity of the human person.

 

5.10. Responsibilities of the State

 

The State shall:

 

5.10.1. respect democratic principles and the fundamental

rights and freedoms proclaimed in this Constitution, and

encourage and facilitate the widest possible participation in all

the processes and institutions of government;

 

5.10.2. endeavour to operate the machinery of government,

including the use and disposition of public finances, with the

greatest degree of transparency consistent with good government

and the national interest, and in a manner that is in

keeping with the democratic vocation of Barbados;

 

5.10.3. endeavour to ensure the protection and promotion

of the internationally recognized economic and social

rights if its People, including the right to work, the right

to health, the right to education and the right to public

assistance in cases of extreme need;

 

5.10.4. endeavour to safeguard the economic interests

of the weaker sections of the community and where required,

contribute to the support of the aged, the infirm, the disabled

and children;

 

5.10.5. endeavour to secure that private enterprise is so

conducted as to ensure reasonable efficiency in the production

and distribution of goods and in the provision and delivery

of services so as to protect the public against unjust exploitation.

 

5.10.6. direct the policies of the State towards securing that

the operation of free competition is not allowed to develop in

such a manner as to result in the concentration of ownership

or control of essential commodities in a few individuals to the

common detriment of its People;

 

5.10.7. ensure that the beaches and public areas are accessible

to all and do not become the exclusive preserve of any

one sector of the community;

 

5.10.8. fashion and direct the policies of the State towards

ensuring that land is not so owned and used as to result in a

concentration of ownership and control in a few individuals to

the common detriment of its People;

 

5.10.9. give the highest priority in the planning and

execution of government policy to the preservation and protection

of the natural environment of Barbados, which it

shall hold as a sacred trust for future generations;

 

5.10.10 . affirm the commitment of the State to

peace, friendly cooperation and security among all

nations founded on international justice and morality and

respect for human rights,

 

5.10.11 . in the conduct of the affairs of the State, accept the

generally recognized principles of international law and

ensure that the Parliament and People of Barbados respect

and implement treaties and conventions which the State,

through its Executive and Parliament, has negotiated and ratified.
















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