Rethinking the constitution

Commissioner of Police Clayton Fernander reported yesterday that murders are up 21 percent so far in 2022 over the same period last year.

He elucidated at a Rotary Club of Nassau event that of the 85 people killed so far this year, 55 percent were out on bail.

Fernander said many of the men who were killed were on bail for murder, armed robberies and other serious crimes.

“Shortly after they are released from prison, they are dead,” he said.

Last month, a judge denied bail for a man charged with murder for his own safety and that of the public.

It is something we are seeing more often, though not frequently, as many of the same characters, if they survive, appear before judges time and time again, charged with heinous crimes.

Perhaps it is time to consider options that could not only help curb crime, but could potentially save the lives of many young men.

Article 20 (2) of The Bahamas constitution guarantees that every person who is charged with a criminal offense “shall be presumed to be innocent until he is proved or has pleaded guilty”.

Further, a person “shall, when charged on information in the Supreme Court, have the right to trial by jury”.

The constitution also allows for a judge to hold a person without bail, however, Article 19 protects the rights of those presumed innocent by stating that if a person is not tried “within a reasonable time he shall … be released either unconditionally or upon reasonable conditions … necessary to ensure that he appears at a later date for trial …”

In 2011, the Bail Act was amended significantly to not only outline what judges should consider when granting or denying bail, but that three years from the date of arrest, or detention, to trial is to be considered a reasonable time within which to be tried.

One of the major issues facing The Bahamas’ criminal justice system and the speediness of trials is the fact that we have a constitutional guarantee of jury trials in the Supreme Court.

The last Constitutional Commission noted that The Bahamas is one of the only countries in the Commonwealth Caribbean with such a constitutional provision.

In fact, former Chief Justice Sir Burton Hall and former Attorney General Allyson Maynard-Gibson both argued that the right to trial by jury in the Supreme Court should be dis-entrenched.

Though the view was not uniform among senior members of the judiciary, the commission recommended automatic trial by jury be abandoned.

“The commission agrees that the criminal justice system would be better served if there were not an automatic right to a trial by jury when charged on information in the Supreme Court,” the commission’s 2013 report said.

“In our view, the constitution should authorize Parliament to prescribe by ordinary legislation the exceptional circumstances in which criminal matters may be tried by a judge alone.”

If the constitutional right to jury trial is altered, that raises the question of the dearth of justices of the Supreme Court due to only being able to serve until age 65, with a possible extension to age 67 and the lack of adequate compensation to convince younger attorneys to occupy the less lucrative bench.

The commission recommended that the constitutional mandatory retirement age for Supreme Court justices, found in Article 96, be raised to 70.

Therefore, if the right to trial by jury is changed and speedier trials can be facilitated, notwithstanding the other shortcomings of the system, judges would be more likely to deny bail to those who pose a violent risk to themselves and others while they await trial.

Of course, there is the issue of actually changing the constitution.

Both Article 20 and Article 96 are specially entrenched provisions of the constitution, that, under Article 54, can only be altered after passing with a three-quarters majority in both houses of Parliament and a successful simple majority referendum of the electorate.

No such referendum has been successful in our history.

However, as the Constitutional Commission pointed out, Article 54 itself is not entrenched.

It is one of only 33 articles out of 137 it does not protect.

Legally, constitutional entrenchment can be altered by a parliamentary majority without the need for referendum.

Parliamentarians could not only update our constitution for the modern age, but stop pretending they are powerlessly bound by a document that was designed to be changed.

Altering Article 54 would be controversial, but if those we elected display courage, they could bring about generational change.

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