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McWeeney: Start small on constitutional reform

Fifty years after the 1973 constitution was agreed upon, and a decade after the last constitutional commission reported, the constitution of The Bahamas remains unchanged, but former Attorney General Sean McWeeney, KC, who chaired that commission, believes its work was not in vain.

“I think it is disappointing that all this time has passed — it will be 10 years this year — and there has still not been a single amendment to the constitution of The Bahamas despite the numerous recommendations that were made covering a very wide and varied terrain made by the Constitutional Commission,” said McWeeney in an interview with The Nassau Guardian yesterday.

He noted “a very high level of apprehension” on the part of successive political directorates when it comes to making constitutional changes, which would require a referendum.

Noting the “consistent record of failure” on the two occasions when efforts were made to amend the constitution, McWeeney said “politicians are naturally very apprehensive about subjecting themselves to a process which historically has tended to backfire on the administration which is moving the amendments”.

The first constitutional referendum in 2002 came at the end of the second Ingraham administration’s term in office.

It asked a variety of questions, including questions on citizenship, an independent boundaries commission, an increase in the retirement age of judges and the establishment of an independent parliamentary commissioner, and an independent teachers commission.

In his final term — 2007-2012 — then-Prime Minister Hubert Ingraham decided not to take another stab at constitutional reform.

The second constitutional referendum was held in 2016 in the last year of the Christie administration’s term in office. It dealt with citizenship questions solely.

That, too, failed.

The Minnis administration made it clear that it had no plan to hold another constitutional referendum. Likewise, the Davis administration does not intend to.

McWeeney said any government would have a “fairly narrow window of time in which to address constitutional reform”.

“When administrations get too deep into their five-year term, there’s an understandable tendency to put the matter off because generally speaking the experience has been the deeper you go into your term, the more unpopular you become in the country; the more unpopular you become, the greater the chances the electorate will take it out on the government by voting against you in a referendum,” he said.

Offering another reason why constitutional reform has not been effected, McWeeney said, “I think the other factor though is the Bahamian electorate, as I’ve said on numerous occasions, approaches the constitution much as it would approach Holy Writ; that it’s something that’s supposed to be unchangeable, something immutable and, more fundamentally, they view it as ‘my things’, something that belongs to them.”

McWeeney added, “Bahamians have a great sense of personal proprietorship when it comes to the constitution, and that’s a good thing in many respects, but I think it can be carried to an extreme.

“I’ve heard it said by a number of people that the constitution is fine the way it was conceived and it requires no change, which is demonstrably untrue in any number of respects.

“But I think what we can do is continue to hope that the necessary political will will be harnessed, so that Bahamians can begin to understand the reasons why it is something which is very healthy and something which is very much in keeping with the democratic spirit of the country to periodically examine the constitution and make changes which are likely to be to the benefit of the country over the long term.”

In its 246-page report, the commission provides an extensive review of the constitution, drafted after many months of meetings with stakeholders, including the general public across the islands of The Bahamas.

Among the recommendations viewed as most controversial were those relating to citizenship.

The commission said, “…The issue of gender discrimination in The Bahamas can be remedied by the appropriate amendments to the constitution to make citizenship entitlements gender neutral…

“Less easy to fix is the issue of how to treat persons born in The Bahamas where neither parent is Bahamian.”

The commission said that situation required a deeper study involving assessment of empirical data on the numbers of such individuals who might fall into this category, and a myriad of other factors — psychological, sociological, economic, health, national security, etc.

The commission recommended the appointment of another commission to study the issue of individuals born in The Bahamas to foreign parents, but no such commission was appointed, though then-Prime Minister Perry Christie had committed to doing so.

McWeeney said yesterday the country should pursue reform, but start with less controversial matters.

“I for one have always suggested we might want to start with things that are really not all that grand, changes that are important but aren’t earth shattering. For example, people are living generally a lot longer than they did before,” he said, adding that increasing the retirement age of judges would be a good place to start without the other controversial questions attached.

Asked if he thinks the commission wasted its time given that no change came as a result of its work, McWeeney said it did not.

“The good thing about the commission’s report is that it’s so comprehensive and so deeply considered that it’s really a blueprint for constitutional change that has long legs, and I think it’s going to be a template that future governments can use for quite some time,” he said.

“I think most of what was recommended would continue to be relevant certainly in the near and the medium term as well, so a government 10 years from now would be able to dust that report off and say, ‘hey, there are some fairly modest proposals that we can start with in this report’, and then proceed accordingly.”

On the citizenship issue, the Davis administration has committed to bringing a citizenship bill to create equality between the sexes on citizenship matters.

Last June, Attorney General Ryan Pinder said in the Senate the government planned to place the bill before Cabinet by the end of the summer, but it is unknown whether that ever happened.

“[That is] something that has been impossible to attain through referenda,” said Pinder, referring to equality on citizenship matters.

“…We have the strength and the bravery to do it through legislation and bring it to this honorable place, to bring the equality that the former FNM administration shied away from over and over and over again.”

McWeeney noted that the deeper the government gets into its term, the less likely it will be that it will bring such legislation.

“No matter who is in power, there’s an understandable inclination to go with legislative changes which are likely to increase your popularity than decrease your popularity and that means trying to avoid as far as possible legislation that is controversial and that is likely to alienate one section or other of the community,” he said.

“So, once you pass the three-year mark at least, it’s basically hands off until the next election.”

The current administration has been in office for 16 months.

The timing of its citizenship bill remains unclear.

The Privy Council, meanwhile, heard arguments on January 17 on whether the Constitution of The Bahamas confers citizenship at birth on a person born in The Bahamas who is the child of an unmarried woman who is not a citizen of The Bahamas and a man who is.

The McWeeney commission concluded that it does.

But McWeeney wished not to opine on that matter yesterday, given that it is before the high court.

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Candia Dames

Candia Dames is the executive editor of The Nassau Guardian.

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