Yes, the prime minister may make “discriminatory or unconstitutional decisions” to fight COVID-19. But no, he is not authorized by law if he does so and should avoid them at all cost.
There is a distinction between whether he may make such decisions and whether they will be enforced in the courts. We have courts, in part because people conferred with authority have made and will make unlawful decisions.
The PM made the following statement during his address in Parliament on July 23, 2020 that should frighten every Bahamian:
“What that demonstrates, Mr. Speaker, is that governments will be placed in situations where at some point in time they would have to make what they call discriminatory or unconstitutional decisions against their people in the interest in the advancement of their nation.”
The PM is the competent authority because of the constitution that governs him and not in spite of it.
The PM would be surprised to learn that Article 29 of the Constitution of The Bahamas, which codified the concept of proclamations of emergency in The Bahamas, does not give him absolute authority to breach the constitutional rights of the citizens and visitors in circumstances like COVID-19.
A quick read of Article 29 would disclose, for example, that even in times of war and emergency, the PM cannot mandate measures that would take life (Article 16); subject an individual to cruel and inhumane treatment (Article 17); impose force labour on an individual (Article 18); etc.
With respect to the other constitutional rights, like the protection of freedom of assembly and association (Article 24) and the protection of freedom of movement (Article 25), the PM can only implement measures that are “reasonably justified in the circumstances” to confront COVID-19.
Every decision made by the competent authority is subject to review of the court and he should be called upon to justify each, given his belief.
Heads of state in former British colonies have also believed that they had unfettered authority to declare and govern under proclamations of emergency with constitutions that were far more liberal than the current Bahamian constitution.
In the 1960s, the heads of state of India and Pakistan relied on the wording in their constitution that said that the head of state may proclaim an emergency when he is “satisfied” that one exists.
The courts at first decided that they did not have jurisdiction to review such decisions.
That approach eventually fell away after robust legal arguments and constitutional amendments that resemble the current constitutional provision in The Bahamas, were made.
The courts have held that it can review such decisions and require justification. Our local courts should make a similar decision if invoked.
Doing so would uphold The Bahamas’ constitutional standard and ensure that measures are “reasonably justified in the circumstances”.
A prime minster could not be allowed to breach the constitution simply because he’s vex. The court has the ability to look at the actions of the competent authority during a state of emergency.
The PM made another frightening statement that calls into question the calibre of legal advice he is receiving when putting draconian resolutions before Parliament.
Brent Symonette, former attorney general, questioned whether any measure in the current resolution is unconstitutional and consequently the regulations thereunder.
The competent authority said he has to check with the AG.
This is a dereliction of duty on the part of the competent authority and the AG.
Both are well aware that the result of the resolution will derogate from the constitutional protection afforded to every resident and guest.
One would have thought that before the competent authority presents such documents for parliamentary sign-off, a constitutionality check would have been performed by the AG and the PM would know the answer in advance.
Many share the unfortunate company of the PM.
They believe the competent authority may make any law he wants.
The PM has a super majority in the House and Senate. He sailed to victory during the last election, which suggests that he may still have the command of the Bahamian people.
If he doesn’t like Article 29 (or doesn’t understand it), change it (or get proper legal advice).
The price tag for breaching such rights could be record-setting.
If one person’s constitutional rights are breached because of a blanket impulsive response to COVID-19, the PM would risk breaching the rights of thousands.
Lawsuits may come, and given the track record of the current AG, the treasury would likewise suffer.
The PM does have the backing of the constitution to implement constitutional measures to fight COVID-19.
Before implementing a measure, the PM should first seek legal advice from the legal community and not just from the AG. Opposing legal advice is of great value.
He should vigorously question his medical advisors, and seek the medical advice of foreign and other local experts with competing views.
The Bahamas is made up of many islands and cays and COVID-19 is affecting each differently.
He should use a risk-based approach for each and not a one-size fits all approach. He should not simply listen to yes-people. Then, using the reasonable man’s test, he should make only constitutional decisions. We did not elect a medical task force to govern our lives.
Sir Burton Hall, 12 years ago, told a small group of law students on the eve of being called to the Bahamas Bar that we lawyers are social doctors.
With the greatest respect, The Bahamas is sick and not just because of COVID-19. It’s in dire need of other doctors to assist the doctor, either directly or indirectly through the courts.
— Attorney Ryan Brown