Our fundamental rights are not disposable

Dear Editor,

There are several seminal documents that entrenched the concept of fundamental rights for citizens and laid the foundation for civil liberties as we know it today.

The Magna Carta was signed in 1215 and is generally regarded as the first deterrent against the absolute power of the King of England. It was essentially a peace treaty imposed upon the king by barons, but it did place limits on the power of the monarchy.

The next great document that enforced restrictions on the monarchy was the Bill of Rights passed by the British Parliament in 1689 and which established many of the democratic principles and civil liberties enshrined in our democracy today.

It may be useful to also mention the United Nations Declaration on Human Rights (UNDHR) of 1948. Although merely a declaration not legally binding on countries, nevertheless it has become accepted by nearly all of the United Nations membership as international law. The UNDHR sets out some 30 articles affirming individual rights.

The Bahamian document that entrenched fundamental rights of the individual is, of course, the constitution of The Bahamas.

Our constitution is comprised of a preamble which sets out the philosophical values and beliefs of the Bahamian people.

The next section of the constitution details all of the persons who are entitled to become citizens of The Bahamas. In order to be recognized as a nation, the United Nations requires that a nation must have a people.

The next section of the constitution sets out the fundamental rights of the citizen and these rights cannot be abridged by any court or institution. The remaining articles of the constitution mostly establish the democratic institutions of The Bahamas.

Articles 15-31 of the constitution spell out the fundamental rights of the individual and embed the democratic tenets that protect citizens from authoritarianism and abuse. The fundamental rights articles were established expressly to guard against violations of individuals’ civil liberties by the government and its agencies. Some of these rights include the right to life, the right of freedom of movement and the right to freedom of expression. These articles are the most sacred of the constitution and should not be abused.

Article 29 of the constitution makes provision for the rarest of occasion when these fundamental rights may be set aside.

Even though the constitution does allow for other emergencies when Article 29 can be invoked, war or times of war is the only emergency mentioned by name in the constitution. That tells us how unusual it is for this provision to be enacted; and it is inferred that when it is invoked, it should be left in place for the shortest time possible.

Bahamians have had their fundamental rights and civil liberties impaired since mid-March in an effort to stop the spread of COVID-19.

The initial 14-day period of the emergency powers was to assess the level of infection, curtail the community spread of the virus and to allow for capacity building within the country’s medical facilities. Part of the process of capacity building should have been an ongoing effort to increase the number of beds, to identify and prepare accommodations for the infected persons and to quarantine. It also involved sourcing of emergency medical equipment.

After a few weeks of lockdowns and curfews, both the competent authority and Dr. Nikkiah Forbes, head of the Infectious Diseases Programme in The Bahamas, expressed the view that the spread of the virus had been satisfactorily contained. Even though statistics confirmed that view, the emergency powers orders were not lifted.

It seems the prime minister’s first and only response to spikes in COVID-19 cases is to lock down the population and to take away their civil liberties. This is a dangerous tendency.

The prime minister asserts that the government’s response to the pandemic is driven by medical science and advice.

For a large part, at least in the beginning, that advice was based on assessments by the World Health Organization (WHO). Now the WHO is advising that there is no need for lockdowns as the localized measures such as physical distancing, wearing of masks, washing and sanitizing of hands and community testing are just as effective.

Do we think that the prime minister will adhere to this bit of medical advice?

Taking away your civil liberties has become so second nature to the government members that they have become careless and cavalier about it.

The Cabinet ministers responsible for bringing the proclamation of emergency to Parliament in order to extend the emergency powers failed (intentionally or not) to table the proclamation on time and permitted it to lapse.

This negligence is inexcusable!

Because of this failure, the governor general was asked to issue a new proclamation of emergency which apparently can now be extended to the end of December. This is not in keeping with the spirit of the constitution.

Then the Senate met illegally on Friday, July 3 and attempted to lay the most recent proclamation of emergency on the table of the Senate in order to facilitate a debate on the new emergency powers.

Fortunately, or maybe unfortunately, Senator Fred Mitchell saved the day in the Senate and brought the violation of the constitution to the Senate president’s attention.

The Senate was then adjourned and met later that afternoon.

As it turned out, the governor general was required to summon the Senate by way of a proclamation published in the gazette.

This requirement was necessary under the provision of Article 29(3) as the Senate was not due to meet within five days after the proclamation had been made.

What sloppiness! What negligence! And this was a matter that was to impact the civil liberties of the population. And to think this could happen when the attorney general of The Bahamas is the leader of government’s business in the Senate.

All doubt was removed on how cavalier the prime minister regards Bahamian fundamental rights and freedoms when he spoke in the House of Assembly recently.

He said something to the effect that future governments may be forced to make unconstitutional and discriminatory decisions. What a statement for a democratically elected prime minister to let out of his mouth!

I was shocked to hear it but I am even more aghast that a Cabinet minister who I think is a lawyer, and who was sitting next to him, could be seen beating on the desk approvingly and could be heard declaring “absolutely”.

It looks as if, for this government, civil liberties be damned. The muted voice of the legal fraternity is also disturbing.

There can never ever be an occasion when a government is forced to act unconstitutionally.

Bahamians have been under lockdown and curfew for nearly five months now and the competent authority does not expect or think he deserves criticism. Criticizing the government for an indefinite state of emergency or for its handling of the COVID crisis is not treasonous or disloyal, as some may think.

I saw some comments allegedly by one Ed Fields which said in effect “shut your mouth and save it” until 2022. How arrogant, insulting and condescending.

There must be consequences for failed political leadership other than defeat in elections.

My hope is that some government at some point will find the urgency and need to repeal the Official Oaths Act and have public officers such as parliamentarians, judicial officers and Cabinet ministers swear fidelity to the constitution of The Bahamas rather than to the British monarchy. This, perhaps, will encourage more accountability by public officers to citizens.

Article 29 of the constitution envisaged a state of emergency lasting for 14 days which could be extended for six months from the end of the initial 14 days.

In my opinion, the framers of the constitution did not intend for the same emergency, in this case COVID-19, to continue beyond six months.

The proclamation of emergency signed on June 29 has to be considered a continuation of the previous one that was permitted to fall away.

The slackness of the government in not laying the proclamation in a timely manner ought not to be used to punish Bahamians with even more lockdowns and curfews for a second six-month period.

I believe that retaining the emergency powers beyond September 19, 2020 would be a serious violation of the fundamental rights of citizens and residents and would be unconstitutional.

Our fundamental rights are not disposable.

Maurice Tynes

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