Dame Joan Sawyer responds to Dame Anita Allen
Re: Constitutional validity of house arrest of the majority of citizens and residents of The Bahamas under the purported exercise of emergency powers under Article 29 of the constitution:
I have read with great interest your very learned exposition of the government’s position on the issue of the validity of the many orders and proclamations made by or on behalf of the government by the governor general and the prime minister and noted that the prime minister has today, August 17, 2020, acted in accordance with your recommendation in that exposition.
In effect, you argue, based on the wording of Article 29 alone, that the governor general and the prime minister as the competent authority under the Emergency Powers Act and the regulations and rules made thereunder, may contravene the fundamental rights and freedoms of every person in The Bahamas with impunity once there has been a declaration that a state of emergency exists and that there is no recourse for persons adversely affected by those regulations and orders which are made by “proclamation” rather than the constitutional procedure under Article 52 of the constitution.
It is noteworthy, however, that in your presentation you made no mention of Articles 2, 17, 18, 27 and 28 of the constitution which are also included in Part III of the constitution and which are not mentioned in Article 29.
I intend in this paper to set out all of those provisions which you have chosen not to mention in your paper so that the Bahamian people may decide for themselves whether they wish to live in a country where, on the decision of the oligarchy who have their own agendas, they will accept dictates by such oligarchy based on information from unknown sources and not publicly verified in the usual way in which such matters are required to be verified under the constitution and statutes of The Bahamas.
I begin this discussion by referring to the definition of the term “detention” which is what the orders made by the competent authority have done to all of the citizens and residents of The Bahamas, not just those who are alleged to have been tested positive for COVID 19 (“the virus”) or those who have been in contact with those tested positive for the virus.
By “detention”, I mean, telling us when we can leave our homes, when we can exercise, when we can go to the shops, telling us when we can get married, how and when we can bury our dead relatives, among other things, telling us when we can go to a doctor or a dentist as well as how many of us can go to church at a time, how long we can be in church and so on and so on.
No one, in their right mind would say that a government modelled on the Westminster model of democracy, does not, in a true national emergency, have the power and the duty to, for example, quarantine persons who have infectious diseases.
The difficulty for you and the present administration is that it has exercised an exorbitant power on the pretext that they are concerned to save lives from this “deadly virus” by detaining every person in The Bahamas — except for persons they have in their wisdom deemed “essential workers”.
In rushing to judgment based on an opinion tendered by a retired president of the Court of Appeal and current law reform commissioner under a contract of or for services with the government, no account was taken of the other provisions of the constitution which must be borne in mind when advising a government, which is contemplating making such draconian orders as have been made by the present administration which have become increasingly restrictive of the exercise by ordinary persons of their entrenched human rights of freedom of movement, freedom of conscience, freedom from arbitrary arrest — 17, 18, 27 and 28 which are not specifically.
Even though Article 19 and 20 are referred to in Article 29, it is relevant to note that Articles 18 and 19 also refer to Article 29. Therefore, to read Article 29 as if it stands alone or is superior to the other articles dealing with fundamental rights and freedoms, is disingenuous as well as dangerously misleading.
So that persons interested in discerning the truth may understand what their constitution actually says I set out here the actual provisions to which you did not refer in your opinion posted to facebook.
Article 2 reads:
“2. - This constitution is the supreme law of the Commonwealth of The Bahamas and, subject to the provisions 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.”
This article was part of the basis for the decision of the Court of Appeal and the Privy Council in Thomas D’Arcy Ryan v Attorney General regarding the validity of section 7 of The Bahamas Nationality Act, 1973 in which the impugned provision was held to be void because it conflicted with the provision of Article 5 (2).
Article 17 reads:
“17. – (1) No person shall be subjected to torture or to inhuman or degrading treatment or punishment.”
(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 authorizes the infliction of any description of punishment that was lawful in the Bahama Islands immediately before 10th July, 1973.”
In modern times, the detention of whole segments of a particular populace was practiced by people like Adolf Hitler and Josef Stalin.
The United Nations’ Human Rights Convention as well as the European Convention on Human Rights were directed to the prevention of such excesses for the future yet, here in 2020, the government of The Bahamas has detained not just a segment or segments of the population but the whole population except for those they describe as “essential workers”.
If your argument is correct, there is nothing wrong with the government inflicting torture, or inhuman or degrading treatment or punishment on people who have not been charged with any breach of any law let alone the orders of the administration during a declared period of public emergency .
Before July 10, 1973, there was one occasion when the then governor placed us under martial law and a squad of soldiers from the Gloucestershire Rangers was sent here and billeted in Oakes Field – that was during the general strike of January 1958.
Article 18 prohibits the enslavement of any person in The Bahamas. That Article reads:
“18. – (1) No person shall be held in slavery or servitude.
(2) No person shall be required to perform forced labour.
(3) For the purposes of this Article, 'forced labor' does not include –
….(d) any labor required during a period of public emergency (that is to say a period to which Article 29 of this constitution applies) or in the event of any other emergency or calamity that threatens the life or well-being of the community, to the extent that the requiring of such labor is reasonably justifiable, in the circumstances of any situation arising or existing during that period or as a result of that other emergency or calamity, for the purposes of dealing with that situation.”
For example, during Hurricane Dorian and its aftermath, the prime minister declared a state of emergency for Abaco and Grand Bahama because of the sudden and tragic loss of life and property in those Islands caused by that hurricane and although it would have been possible to require persons to help clean up the vast amounts of debris from the destruction wrought by the hurricane, no such order was necessary because there were many volunteers and voluntary organizations both Bahamian and non-Bahamian.
I turn next to Article 19 which guarantees to every person in The Bahamas protection from arbitrary arrest and detention. It is a fairly long article so I will restrict my excerpt to the most relevant provisions in light of the fact that your advice was that the government can detain the whole population once a state of emergency has been declared and nothing contained in or done under the authority of such a law can be held to be inconsistent with Articles 19, 20 – except paragraph 20(4) – or any provision of Articles 21 – 26.
Whether by inadvertence or by design, you made no mention of paragraphs (5), (6) and (7) of Article 19 which apply when a state of emergency has been declared under Article 29. So far as relevant, those paragraphs read:
“19. – (1) No person shall be deprived of his personal liberty save as may be authorised by law in any of the following cases –
….(f) for the purpose of preventing the spread of an infectious or contagious disease or in the case of a person who is, or is reasonably suspected to be, of unsound mind, addicted to drugs or alcohol, or a vagrant, for the purpose of his care or treatment or the protection of the community.
“(5) Where a person is detained by virtue of such a law as is referred to in Article 29 of this constitution, the following provisions shall apply:
(a) “he shall, as soon as reasonably practicable and in any case not more than five days after the commencement of his detention, be furnished with a statement in writing, in a language he understands, of the grounds upon which he is detained.
(b) “not more than fourteen days after the commencement of his detention, a notification shall be published in the Gazette stating that he has been detained and giving particulars of the provisions under which his detention is authorised;
(c) “He may from time to time request that his case be reviewed under paragraph (d) of this paragraph but, where he has made such a request, no subsequent request shall be made before the expiration of three months from the making of the previous request;
(d) where a request is made under sub-paragraph (c) of this paragraph, the case shall, within one month of the making of the request, be reviewed by an independent and impartial tribunal established by law, presided over by the Chief Justice or another Justice of the Supreme Court appointed by him, and consisting of persons who are Justices of the Supreme Court or who are qualified to be appointed as Justices of the Supreme Court.
(e) he shall be afforded reasonable facilities to consult and instruct, at his own expense, a legal representative of his own choice, and he and any such legal representative shall be permitted to make written or oral representations or both to the tribunal appointed for the review of his case.
“(6) On any review by a tribunal in pursuance of paragraph (5) of this article of the case of any detained person, the tribunal may make recommendations concerning the necessity or expediency of continuing his detention to the authority by whom it was ordered, but, unless it is otherwise provided by law, that authority shall not be obliged to act in accordance with any such recommendations.
“(7) When any person is detained by virtue of such a law as is referred to in Article 29 of this constitution the prime minister or a minister authorised by him shall, not more than thirty days after the commencement of the detention and thereafter not more than thirty days after the making of the previous report, make a report to each House stating the number of persons detained as aforesaid and the number of cases in which the authority that ordered the detention has not acted in accordance with the recommendations of a tribunal appointed in pursuance of paragraph (5) of this article:
Provided that in reckoning any period of thirty days for the purposes of this paragraph no account shall be taken of any period during which the Parliament stands prorogued or dissolved.”
Please correct me if I am wrong in concluding that none of the provisions of those paragraphs have been complied with and certainly none of the names of the persons who you opine have been validly detained have, so far, been Gazetted.
The result is that there is a serious lack of trust in the veracity of the information being given to the public and yet they are being even more drastically restricted in the exercise of their undoubted freedoms guaranteed by the constitution itself – see also Liversidge v Anderson  AC 206 and Regina v Secretary of State ex p. Khawaja  AC 74 at 110.
You also made no reference to Articles 27 and 28 of the constitution. Article 27 protects from deprivation of property without prompt and adequate compensation.
The government has apparently taken over certain buildings belonging to private enterprise. Presumably there are sufficient funds in the Consolidated Fund to pay for these additional expenses and no doubt those expenses have had the necessary approvals under the recently passed budget – see, for example, Attorney-General v De Keyser’s Royal Hotel  AC 508.
Article 28 deals with the enforcement of fundamental rights of any person in The Bahamas. So far as relevant to the issues under consideration, Article 28 reads as follows:
“28. – (1) If any person alleges that any of the provisions of Articles 16 to 27 (inclusive) of this constitution has been is being or is likely to be contravened in relation to him then, without prejudice to any other action with respect to the same matter which is lawfully available, that person may apply to the Supreme Court for redress.
(2) The Supreme Court shall have original jurisdiction –
(a) to hear and determine any application made by any person in pursuance of paragraph (1) of this article; and
(b) to determine any question arising in the case of any person which is referred to it in pursuance of paragraph (3) of this article, and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement of any of the provisions of the said Articles 16 to 27 (inclusive) to which the person concerned is entitled:
Provided that the Supreme Court shall not exercise its powers under this paragraph if it is satisfied that adequate means of redress are or have been available to the person concerned under any other law.
(3) If, in any proceeding in any court established for The Bahamas other than the Supreme Court or the Court of Appeal, any question arises as to the contravention of any of the provisions of the said Articles 16 to 27 (inclusive), the court in which the question has arisen shall refer the question to the Supreme Court. …”
It appears from the above provisions that even if the competent authority makes orders, ostensibly to protect the majority of the citizens and residents of The Bahamas from the virus, a person who is detained without reasonable cause to suspect that he/she has the virus or has been exposed to it, would still have the right to sue the government for infringement of his or her constitutional rights and freedoms. And, of course, Article 29 does not, and could not logically refer to this article.
Article 29 of the constitution which, so far as it may be relevant, reads as follows:
“29. – (1) This article applies to any period when –
(a) The Bahamas is at war: or
(b) there is in force a proclamation (in this section (sic) referred to as a ‘proclamation of emergency’) made by the governor general and published in the Gazette declaring that a state of public emergency exists for the purpose of this section(sic).
(2) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of Article 19, any provision of Article 20 other than paragraph (4) thereof, or any provision of Articles 21 – 26 (inclusive) of this constitution to the extent that the law in question makes in relation to any period to which this article applies provision, or authorises the doing during any such period of anything, which is reasonably justifiable in the circumstances of any situation or existing during that period for the purpose of dealing with that situation….” (Emphasis supplied)
That provision is like a number of other provisions in the human rights provisions of the constitution which give a government a locus poenitentiae if they are sued for redress by someone who, for example, has been diagnosed as being positive for the virus.
It cannot protect a government which acts on unspecified grounds of belief that every citizen and resident is suspected of having the virus or of being exposed to someone who has or had the virus.
When dealing with anything as delicate and as valuable as human rights and freedoms, we should always bear in mind the reflection by the German Lutheran Pastor Martin Niemoller (1892 -1984) about the cowardice of German intellectuals and certain clergy including by his own admission, Niemoller, himself following the Nazi rise to power and the subsequent incremental purging of their chosen targets, group after group. He said:
“First they came for the socialists and I didn’t speak out because I was not a socialist
Then they came for the trade unionists and I didn’t speak out because I was not a trade unionist
Then they came for the Jews and I didn’t speak out because I was not a Jew
Then they came for me and there was no one left to speak for me.”
Joan A. Sawyer