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The next move

“I think a better, fairer and more accurate reflection would be obtained if the current first-past-the-post election system were replaced with a system of proportional representation.”

-Sir Lynden Pindling

The Constitutional Commission has concluded Prime Minister Perry Christie was wrong on one point: The casino question is not a constitutional issue.

By making this statement, the commission has hit the ball back in Christie’s court.

While the decision was always his to make, he must now do so without the comfort or support of any recommendation from the commission he appointed.

“The complaint out there [is] that Bahamians aren’t allowed to gamble, and we think the politicians out there have been a bit disingenuous by treating this as a constitutional issue,” said Sean McWeeney, the commission’s chairman.

“I think this is their way of passing the buck and basically we have lobbed the ball back. This is a simple problem.

“This is not a complicated problem. Section 50 of the Lotteries and Gaming Act is the section that contains the restriction. If you think Bahamians should be allowed to gamble, just repeal it. Repeal Section 50. It’s a simple matter.”

It was not how Christie viewed the matter when he spoke to National Review last November, when he explained why the government had decided to place the web shop and lotteries questions on the approaching gambling referendum, but not the casino question.

“The Government of The Bahamas when it appointed the Constitutional Commission knew that the Constitutional Commission had within its remit the question of looking at the constitution, listening to people and taking all of the issues that will be put before the people in a constitutional referendum,” Christie said.

“And so, we did not want to mix up the two, and so in the general election campaign we put into our platform, which we called the Charter for Governance, that we will deal with this issue of web shop gambling and lotteries and that’s where we are.

“And so, I expect the other issue (the casino issue) to come about under McWeeney’s commission.”

McWeeney and Carl Bethel (the opposition’s representative) and others are on that commission.

“And then we will take a look at that (the casino issue) as to whether that will be a question on the referendum that will follow,” he said.

The prime minister explained to National Review at the time that he did not want to mix up issues that should be addressed in a constitutional referendum with others — like web shops and a national lottery — that were addressed in the January 28 consultative referendum.

The discrimination against Bahamians relative to the casino issue is allowed to exist as a result of a certain constitutional provision.

Article 26 (1) of the constitution states that “no law shall make any provision which is discriminatory either of itself or in its effect”.

However, Article 26 (4) (e) states that this article shall not apply to any law so far as that law makes provision “for authorizing the granting of licenses or certificates permitting the conduct of a lottery, the keeping of a gaming house or the carrying on of gambling in any of its forms subject to conditions which impose upon persons who are citizens of The Bahamas disabilities or restriction to which other persons are not made subject”.

It is the Lotteries and Gaming Act 1969 that prohibits citizens and permanent residents of The Bahamas from patronizing casinos in The Bahamas.

An amendment to this law could easily address the casino question, as noted by McWeeney.

This discrimination has been the subject of heated debate.

The call for the elimination of the provision of the constitution that allows for certain discriminatory legislation has been widespread.

In one of his articles on constitutional reform, former Attorney General Alfred Sears had urged the commission to address this matter.

“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,” wrote Sears in the article titled “The Constitution, gaming and discrimination”, which was published in the November 15 edition of The Nassau Guardian.

Sears questioned whether this blanket prohibition of Bahamians from gaming can be justified, on the grounds of public policy and constitutional principle, given the current support of and subsidy by the government of foreign-operated casino gaming in The Bahamas.

The Constitutional Commission determined that whether Article 26 (4) (e) stays in place or not is irrelevant to the question of whether Bahamians should be allowed to gamble in casinos.

“This is not a matter that falls for constitutional address,” the commission said.


Weighty Issues

The report of the Constitutional Commission presented last week was not groundbreaking in its recommendations, although it provided a welcomed and seemingly well thought out examination of the constitution ahead of the nation’s 40th anniversary of independence.

Anyone listening to hear recommendations for radical changes would have been disappointed as the group took a very conservative approach to constitutional reform.

The commission recommended that we keep the monarchy and also the Privy Council, although it suggested Parliament pass legislation to tie the hands of that court on the question of the death penalty.

In 2006, the first commission appointed by Christie concluded that the time had come for a Bahamian head of state to be elected by both houses of Parliament, that the British monarchy no longer serve as head of state and that the office of governor general be abolished.

A recommendation to abolish the monarchy was also made in 1998 by the late former prime minister Sir Lynden Pindling, who said, “Bahamians may not have voted for independence in 1972 if the queen were not in the constitutional picture, but I doubt the position is the same today.”

Sir Lynden suggested at the time that the queen of The Bahamas be replaced by a new head of state called “president of the Commonwealth of The Bahamas”, who would be a citizen of The Bahamas.

He also recommended that serious consideration be given to those provisions in the constitution that make people stateless.

As expected, the McWeeney commission recommended that all provisions relating to the acquisition of citizenship and transmission to children or spouses be cast in gender neutral language.

But it recommended that a separate commission be appointed to address the issue of stateless people.

It said this must be made a matter of high priority for the government as the future peace and internal harmony of Bahamian society may well depend upon it.

Despite the groundswell of support for the abolition of the upper chamber, the commission’s view is that the Senate should be retained, although its composition should be enlarged to reflect a wider cross-section of demographic and pluralistic interests.

Despite hearing several proposals to modify the electoral system to allow for some form of proportional representation in the House of Assembly, the commission does not endorse such a change.

In his 1998 speech outlining his vision for a 21st century constitution, Sir Lynden noted that the House of Assembly is the brightest mirror of the nation.

“Should it not, therefore, simply reflect both the will of the majority and the wishes of the minority?” he opined. “The way we now choose the members of the House causes it not to reflect as true an image as it should.

“I think a better, fairer and more accurate reflection would be obtained if the current first-past-the-post election system were replaced with a system of proportional representation.”

But while it accepted that the “winner take all” approach of the first-past-the-post system has sometimes polarized and undermined government legitimacy in the region, the McWeeney commission still considers it the superior electoral system and thereby recommended its retention.

It also recommended an independent Electoral and Boundaries Commission to replace the current Constituencies Commission.

It recommended that some of the powers of the prime minister relating to public officers and the judiciary be transferred to the governor general, or to the other permanent commissions whose independence and security of tenure are already constitutionally secured.

The McWeeney commission also reported that there was overwhelming support for removing the flexibility of the prime minister to dissolve the House at a time of his own choosing in the run-up to general elections, and for prescribing instead a fixed time (or period) for the calling of general elections.

The commission supported the call for greater certainty with respect to the calling of elections, but suggested a narrow fixed window rather than a specific date.

The fixed date is something PLP leaders said they would push for on the most recent general election campaign trail.

Interestingly, in his 1998 address, Sir Lynden also expressed the view that it would be better if all general elections were held on “a day certain”.

Of course, the prime minister does not have to act on the commission’s recommendations on any of these matters.

On more than just the gambling issue, the commission has thrown the ball back to Christie.

It is now for him to decide.

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