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Views on constitutional reform

Prime Minister Lynden Pindling at Clifford Park on July 10, 1973 after he was handed the Independence Instruments by Prince Charles.

Addressing a Colloquium on Political Reform, Constitutional Change and National Development in June 1998, former Prime Minister the late Sir Lynden Pindling opined that the cumulative experience of 25 years of independence had been of immense value to Bahamians.

“It has given them a great insight into the workings of government and they may now have some fresh thoughts on how they would prefer to see their country run,” said Sir Lynden, two years before his death.

“Those thoughts may vary in their detail but there seems to be a growing consensus on the need for a deeper and wider democracy and a more open and dynamic system of government which better reflects the will of the people; enhances freedom through greater equality and broader opportunity; establishes through appropriate checks and balances a fair and reasonable balance of power between the executive, legislative and judicial branches of the government and creates a Parliament which is strong and effective and can hold accountable the government of the day that is responsible to it.”

While 40 years prior, he was instrumental in negotiating the 1973 constitution with the British, 20 years ago, Sir Lynden had several thoughts on constitutional reform, including a view that the monarchy in The Bahamas should be abolished.

Sir Lynden said while his thoughts were not necessarily original, they were crystalized from his experience of more than 40 years in the practice and science of government.

He noted at the time that a new generation questioned the role of a queen who was not born in The Bahamas, is not a citizen of The Bahamas and does not live in The Bahamas.

Sir Lynden suggested in that 1998 address that the queen of The Bahamas be replaced by a new head of state called the “president of the Commonwealth of The Bahamas and permanently resident in The Bahamas”.

He did not suggest, however, that the president be a carbon copy of the governor general in our existing constitution.

It was his view that the president could and should play a more strategic national role.

Eight years later, the first constitutional commission appointed by Perry Christie also reported that the time had come for a Bahamian head of state to be elected by both houses of Parliament.

It recommended that the English monarch no longer be head of state of The Bahamas and the office of the governor general be abolished.

The commission headed by former Attorney General the late Paul Adderley also said The Bahamas should be a democratic parliamentary republic with the head of state being the president.

Citizenship

In 1998, Sir Lynden also expressed views on constitutional reform as they relate to citizenship.

He suggested that consideration should be given to the question of whether children born outside The Bahamas to Bahamian mothers and foreign fathers should become Bahamian citizens on the same terms as children born outside The Bahamas to foreign mothers and Bahamian fathers.

“Simultaneously, should not serious consideration be given to those provisions in our constitution which now make people stateless?” he asked.

When we interviewed the late Timothy Donaldson, the first governor of the Central Bank, in 2002, he said he had always been “incensed and ashamed” by the constitutional language in this regard.

Donaldson was an advisor to the Pindling government during the 1972 constitutional negotiations in London.

“To me it’s just not right,” Donaldson said.

He explained that the thinking of then Prime Minister Pindling was that the provision would ensure that Haitians would not eventually take over The Bahamas, which at the time had a population of only about 220,000.

“Pindling said these Haitians produce like rats,” Donaldson said.

“He said they’re going to produce all those children and at some point in time, the Haitians will outnumber Bahamians. But when you make a law geared at just one particular group of people, it’s certainly not a good policy.”

Four years after Sir Lynden’s 1998 address, the citizenship question was among several questions put to the Bahamian people in the first constitutional referendum.

Then Prime Minister Hubert Ingraham noted that for far too long, the constitution has held double standards, a state of affairs that for too many years deprived the children of Bahamian women, married to foreign nationals, of citizenship and denied the foreign-born spouses of Bahamian women the right to be registered as Bahamians, a right granted by the constitution to the spouses of Bahamian men.

Voters strongly rejected all the questions in the 2002 referendum, held less than three months before a general election.

The 2016 constitutional referendum dealing with citizenship questions were also held in a politically charged environment.

Again, voters overwhelmingly rejected the questions, setting the course of constitutional reform back substantially.

The citizenship issue is not one the current administration seems prepared to take up by way of any constitutional referendum.

In October, Prime Minister Dr. Hubert Minnis pledged to address the matter through ordinary legislation.

“My government will make changes to the Immigration Act (presumably he meant the Bahamas Nationality Act) to ensure that all children born to Bahamian women, single or married, out of The Bahamas, are automatically Bahamians,” Minnis said.

Nine months after that one line announcement, the government has not yet made that issue a focus of its agenda.

The last constitutional referendum came three years after the most recent constitutional commission – headed by former Attorney General Sean McWeeney, QC – reported.

The question of citizenship and the inability of Bahamian women married to foreign men to automatically pass citizenship on to their children was among the issues addressed by the McWeeney commission.

At the time of the commission’s appointment in 2012, Perry Christie, the then prime minister, said, “It’s a very important issue and it’s one that we indicated that we are prepared to put to the people of the country.”

Explaining how this provision ended up in the constitution, Sir Arthur Foulkes, in an interview while governor general, said, “The argument was that in matters of citizenship the international practice was that the women follow the men and I suppose that was true.

“Some of us took the position that at this time, you know the world is moving on, and that women should be equal in every respect, including bequeathing citizenship on their foreign spouses and their children [we believed that it should be equal].

“There should be no difference between getting citizenship between the mother and the father. The British government did not agree with that at the time, and so we still have what I regard as an aberration in our constitution and it is a matter now that we have debated before; it is a matter now that I believe the Constitutional Commission is looking at again.

“What you see today is what exists in the constitution, that there should be a difference between the acquisition of citizenship between the male and the female and that was the fundamental difference and the British government of course prevailed on that issue.”

In 2013, Sir Arthur opined that while reform is a good thing, The Bahamas has a modern constitution.

“We have a constitution that guarantees, with the exception of what we talked about earlier, rights and those rights are spelt out in our constitution,” he said.

In his address on constitutional reform 20 years ago, Sir Lynden said experience had taught him that the list of fundamental rights and freedoms set out in Chapter 3 of the existing constitution should be expanded to include additional rights.

He recommended the inclusion of the right of a citizen to vote and the right to the equal exercise of political choice; the right of a citizen to a passport; the right of a citizen to secondary education; the right of a citizen to good health and a clean environment; the right of a citizen to seek and to obtain public information; the right of a citizen to equal access to opportunity; the right of a citizen to be free from fear and from victimization and the right of a citizen to fair competition.

“All the laws of The Bahamas, both old and new, should then be required to pass the litmus test of the revised constitution and any Bahamian citizen who wishes to institute proceedings to defend or enforce any of the rights and freedoms should be able to do so without having to obtain prior consent of the attorney general,” Sir Lynden said.

“In this information age, the right of a citizen to seek and obtain public information should require the repeal of the Official Secrets Act and the enactment of a Freedom of Information Act.”

Other proposed reforms

A deeper read of Sir Lynden’s recommendations for political and constitutional reform 25 years after independence reveals his thinking on parliamentary reform and general elections.

He said a 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.

“Bahamians love elections,” Sir Lynden observed. “Voter turnout has always been high. This system will help to keep it that way because it will deepen and widen our democracy, strengthen our Parliament, prevent the risk of an elected dictatorship and offer the fairest and most effective electoral system for a small country like The Bahamas.”

He added that the House of Assembly should continue to be elected for a term of five years but said having regard to the experience gained since the introduction of self government in 1964, it would be better if all general elections were held on a certain date.

And Sir Lynden recommended an independent Electoral Commission responsible for the preparation for and the conduct of elections in The Bahamas.

“Our 21st Century constitution should make provision for constituency boundaries to be reviewed, drawn and submitted to Parliament every five years by the independent Electoral Commission,” he said.

“To prevent political parties from drawing creative constituency boundaries which facilitate easier re-election, you might think that a new procedure is called for.

“If the responsibility for the job rested with an Electoral Commission, the procedure would be simple and transparent.”

Sir Lynden added that the Electoral Commission should also be charged with the responsibility to regulate campaign financing and expenditure.

“Legislation to guard against the possibility of control by powerful vested interests may very well be necessary,” he said.

“Experience gained at home and abroad suggests that there should be put in place a democratic regime for the public and private financing of election campaigns; the limitation of the size of private contributions; the limitation of the total amount spent on election campaigns and the reporting of all contributions and expenditures.”

Interestingly, it was Sir Lynden’s view in retirement that there was a need for referenda to gauge the public’s views on matters of governance.

“You may find that as our democracy matures and our level of sophistication rises, more and more people would wish to send clear messages to their government from time to time on matters of great social, economic or even political importance on which public opinion seems to be starkly divided,” he said.

“I would, therefore, suggest that a revised constitution make provision for the holding by the government of referenda from time to time on difficult and potentially divisive issues as a democratic mechanism for the direct involvement of voters in the choice between competing views.”

Forty-five years after independence and 20 years after Sir Lynden’s major address – and with the experiences of failed referenda to learn from – substantial constitutional reform is not a priority item for the current government.

The public does not seem to have an appetite for it either.

The Minnis administration has, however, pledged to introduce term limits for the prime minister; establish a system of recall for non-performing members of Parliament; establish an Office of Ombudsman to protect members of the public against acts of maladministration and establish an independent Boundaries Commission and a fixed date for general elections.

Additionally, it has committed to campaign finance reform.

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