Emancipation Day juxtaposed against the State of Emergency: thoughts of Koyratti vs. AG of Mauritius JCPC

Dear Editor,

I am a Bahamian whose paternal ancestors canoed from Cuba, where they had been slaves, to the islands of The Bahamas, where they became free men. It would be generations later when in 1905 Cuba liberated its slaves. Freedom is important to the descendants of slaves who have never been compensated for the degradation of slavery.

Our constitution pays tribute to our ancestors upon whose shoulders are hoisted our country, its constitution and our very sovereignty. Yet, Article 29 of that constitution stands as an anomaly to the freed men, be they slave or indentured servant — the former black, the latter white.

The shared bonds of the shackles broken for so long appear to have been reforged under the guise of public health. The Bill of Rights save Article 19(2) suspended, and dictatorship fashioned under the competent authority — one man in all his fallibility, the prime minister, established.

The inconceivable has become our new enslavement; some say our new norm. It causes me great discomfort and anxiety. Indeed, our societal acceptance and malleability is the most disquieting feature of this new Bahamas.

One would expect our institutions to resist, oppose and deter the incursion of rights earned by the blood, sweat and tears of both enslaved and ensnared indentured servants. Yet, that expectation has been muted by the courts and its officers, counsel and attorneys at law.

The courts of The Bahamas are independent of the executive and legislative bodies of the government of The Bahamas. This independence is unaffected by Article 29 and its horrific consequences.

Members of the bar and their employees play a vital role in preserving that independence. Access to justice supersedes the Bill of Rights and is grounded in Article 1 of the constitution: “The Bahamas shall be a sovereign democratic state.”

“Democratic” imports the right of citizens to participate in all facets of governance of which justice is vitally important. The independence and functionality of the courts are the central core of a mosaic of rights and obligations that aggregate into the rule of law — the cornerstone of our democracy. Article 1 is independent of Article 29.

Article 1 founds the absence of court staff from persons designated as emergency workers. Likewise attorneys and their assistants.

The state of emergency legislation was deliberately silent in any reference to the courts and its undergirding substructure. It is legally expected that the courts would continue to function unabated and unaffected in its competence to deliver the rule of law to an expectant citizenry.

What, then, is the basis of the purported restrictions on the legal profession or on witnesses or the public desirous of being the public in public hearings?

What is the basis of the delays in criminal trials? At the core of Article 1 of the constitution is the existence of the Rule of Law!

Its most graphic public manifestation is public criminal trials and hearings throughout every tier of the court system. Yet, no new trials can be started in the magistrates court.

Has there been any consideration of non jury trials in the Supreme Court now that Article 20 is suspended? It means that the presiding judge has to give a reasoned decision on both convictions and acquittals – not necessarily a bad thing if one accepts the logic of Sir Burton Hall in his arguments against jury trials.

The opportunity to explore different facets of the right to a fair trial are seemingly not being embraced.

The Bill of Rights are stand-alone rights independent in their existence from preexisting common law rights.

The source of the respective rights may be significant; but in the main, the Common Law source founds the existence of basic human rights.

Those rights exist independent of the suspension of the Bill of Rights sans Article 19(2).

It is important that the rights of citizens at common law be averted to by authorities, and ALL THE MORESO by the competent authority when wielding the dictatorship power arrogated to him through Article 29 of the constitution.

Too often, we, the descendants of the sacrificed, are called to further sacrifices, the necessity for which might have been averted by careful focused thought required by governance.

There is no proper explanation for the lack of hospital beds or quarantine stations to ensure suspected COVID-19 victims are confined under supervision to ensure containment of the disease.

The fear of requisitioning hotel resorts has paralyzed the mentality of the competent authority and he picks on the poor and disenfranchised as an easy way out.

In doing so, he has panicked our community into runs on the grocery stores.

The stampedes have created congregations for the perfect scenario for a spike in the already accelerated increase in COVID-19 infections, the increase itself the result of myopic, thoughtless opening of the borders.

We, the descendants of slaves and indentured servants, are forced, coerced and confined as the easy way out of a government erroneous decision.

At the heart of our pandemic affliction is that our rights as citizens are ignored.

There is no advertence to the importance of these rights nor the observance of them.

Maybe, the acknowledgment of our importance is the beginning of a dialogue which encourages compliance with decisions of the dictator and competent authority.

Maybe the inclusion of the large economic stakeholders in the sacrifices we are all coerced into making, might persuade us of the absence of malice in the dictator competent authority.

In the center of our struggles, the institution of the law needs a call to arms in the defence of the rights of Bahamians.


— Damian Gomez, QC

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