In the midst of the COVID-19 pandemic in The Bahamas, the unintended expiration of the proclamation of emergency, regulations and order signed by the governor general on March 17, 2020, has created a series of constitutional issues.
On June 29, 2020, the government tabled a resolution seeking the approval of the House of Assembly to extend the March 17, 2020 proclamation of emergency to July 31, 2020.
However, the government was required to give the “one clear day” notice under 46 (1)(a) of the Rules of the House of Assembly or secure the unanimous consent of the House to waive the notice, which it neither did nor achieved.
Faced with the imminent collapse of the COVID-19 emergency regime by midnight of June 29, 2020, the government had the governor general sign a “new” proclamation of emergency and emergency regulations on June 29, 2020, both of which are almost in identical terms to those that were signed by the governor general on March 17, 2020 and presented to Parliament on March 18, 2020.
This development raises questions about the use of emergency powers by the executive, the impact on fundamental rights and oversight by Parliament of the use of emergency powers under Article 29 of the Constitution and section 5 of the Emergency Powers Act.
The constitution gives the Cabinet a narrowly defined right to declare that a state of public emergency exists and to suspend certain fundamental rights guaranteed under the constitution.
Accordingly, on March 17, 2020, the governor general of The Bahamas signed a proclamation of emergency under Article 29 (1) of the constitution declaring that a state of public emergency existed due to the presence of the COVID-19 pandemic in The Bahamas; thereby, suspending fundamental rights of persons under Articles 19, 20, 21 to 26 respectively for a 14-day period.
The governor general, under Article 79 of the constitution, was acting under the advice of the Cabinet.
Pursuant to the Emergency Powers Act, 1974, on March 17, 2020, the governor general also signed the Emergency Powers (COVID 19) Regulations, 2020, which appointed the prime minister as the competent authority, granted health officials the power to detain persons, on the reasonable belief of being infected with COVID-19 and risk of contaminating others, for purposes of screening, assessment and restriction; authorized the requisitioning of essential services; social distancing and curfew; allowed access to private property, stopping, detaining and arresting persons; the power to mobilize regional and international military and police forces to assist in relief, essential services and public order; and imposed monetary and penal sanctions for any breach of the regulations.
Further, the governor general also on March 17, 2020, under regulation 14 of the Emergency Powers (COVID 19) Regulations, 2020, signed the Emergency Powers (COVID 19)(No. 1) Order, 2020, which imposed a daily 9 p.m. to 5 a.m. curfew; closed businesses; prohibited gatherings and travel by ground, air and sea, other than for essential services and as authorized by the competent authority.
Notice to Parliament
Article 29 (3) of the constitution mandates copies of any proclamation of emergency made shall be laid before the House of Assembly and the Senate as soon as practicable within five days, or if they are not due to meet, the governor general shall summon them, by proclamation in the Gazette, to meet within five days.
On March 18, 2020, the Cabinet presented the House of Assembly and the Senate with the Emergency Proclamation, the Emergency Powers (COVID 19) Regulations, 2020, and the Emergency Powers (COVID 19)(No. 1) Order, without any resolution, debate or vote by the House of Assembly or the Senate.
The framers of the constitution intended the democratic oversight of Parliament after 14 days, during a state of emergency, for the protection of fundamental rights and democracy, to determine whether it was “necessary or expedient for securing the public safety, the defense of The Bahamas, the maintenance of public order and the suppression of mutiny, rebellion and riot and for maintaining supplies and services essential to the life and well-being of the community”.
This parliamentary oversight is especially critical for fundamental rights of persons guaranteed by the constitution.
On March 17, 2020, when the governor general signed the proclamation of emergency, the legal effect was to suspend the fundamental rights guaranteed in the constitution under Article 19 (protection from arbitrary arrest or detention), Article 20 (secure protection of the law), Article 21 (right to privacy of home and other property), Article 22 (protection of freedom of conscience), Article 23 (protection of freedom of expression), Article 24 (freedom of assembly and association), Article 25 (freedom of movement) and Article 26 (protection from discrimination).
Without Parliament’s approval, after 14 days, under Articles 29 (4) of the constitution, a proclamation of emergency ceases to have any legal effect, unless Parliament passes a resolution extending the proclamation of emergency up to six months from the date it would have otherwise expired.
The House of Assembly and the Senate debated and extended successive COVID-19 resolutions, with the official opposition sometimes waiving the notice requirement, on March 30, 2020; April 6, 2020; April 27, 2020; the last being May 8, 2020, which expired on June 29, 2020.
On Sunday, June 28, 2020, the prime minister in a national address, announced that The Bahamas was entering a “new normal” with respect to the COVID-19 pandemic.
He made the following announcement:
“On Wednesday July 1, 2020, we will enter into phase two of the tourism plan when our international border will reopen for international commercial flights.
Also, this coming Wednesday:
– Hotels and vacation rentals which may have been closed, may reopen;
– Taxi services may resume based on guidelines in the Ministry of Tourism and Aviation’s Bahamas Tourism Readiness & Recovery Plan;
– Private and public bus services may resume, with 50 percent occupancy based on guidelines in the Ministry of Tourism & Bahamas tourism Readiness & Recovery Plan; . . .
On July 13, attractions and excursions and tours may reopen.
On July 27, vendors, including straw vendors may reopen and jet ski operators may recommence operations. . .
Gyms and outdoor group exercise may reopen with health safety protocols approved by the Ministry of Health.”
It is in the context of this “new normal” that the “new” Proclamation of Emergency and Emergency Powers (COVID 19) Regulations, 2020, signed by the governor general on June 29, 2020, should be examined.
The Emergency Powers Act, at section 5, provides that all emergency regulations shall have no effect when the proclamation upon which they are based ceases to have effect “unless each House of Parliament has, by a like resolution in such case, affirmed that those regulations shall have effect during that period”.
A literal interpretation of this provision is that all emergency regulations require the affirmative vote of Parliament.
The question is whether The Bahamas is dealing with a new public emergency or a continuation of the public emergency that was declared on March 17, 2020.
If the “new” June 29 proclamation of emergency and regulations are, in effect, merely a continuation of the same COVID-19 public emergency that was declared on March 17, 2020, should they not be subject to the strict requirement of section 5 of the Emergency Powers Act, which mandates prior parliamentary approval of any emergency regulations, or should the government be allowed a fresh 14 days of emergency powers without parliamentary consent?
The appropriate answer, in my view, is for the government to seek the approval of Parliament for the continuation of the emergency regime by way of a resolution before both the House of Assembly and the Senate, consistent with the government’s intention contained in the resolution tabled in the House of Assembly on June 29, 2020 and section 5 of the Emergency Powers Act.
This course of action will preserve the spirit of Article 29 of the constitution, the Emergency Powers Act, ensure parliamentary oversight and maintain public confidence.
After the proper termination of the current COVID-19 public emergency regulations, The Bahamas should review the public emergency provisions of Article 29 of the constitution and Emergency Powers Act to determine how to better secure fundamental rights and parliamentary oversight during any future proclamation of public emergency.
Should not the prime minister be mandated to consult with the leader of the opposition, speaker of the House of Assembly and president of the Senate before the governor general signs a proclamation of public emergency?
Should not the chief justice be required, pursuant to Article 19 (5)(d) of the constitution, to appoint an independent and impartial emergency appeal tribunal, at the signing of the proclamation of emergency, to review the claims of persons who have been arbitrarily arrested and detained during a state of emergency?
Should not the period for legislative oversight of a proclamation of public emergency be less than 14 days? Perhaps, it should be reduced to 24 hours, like Fiji, or five days like Romania, or seven days like Namibia?
Should not parliamentary extensions of a proclamation of public emergency require a parliamentary super majority vote, after the first extension, like South Africa where extensions require a 3/5 majority, or Kenya where extensions require a 4/5 majority, or like Trinidad & Tobago where extensions after 60 days require a 3/5 majority?
• Alfred Sears is a former member of Cabinet and a Queen’s Counsel.