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Why are the Health Services (COVID-19) Rules 2021 unconstitutional? (Full Article)

The PLP has issued the Health Services (COVID-19) Rules 2021, which should be read and construed in conjunction with one another and are alleged to amend section 29 of the Health Services Act to declare a pandemic of COVID-19 (i.e. a state of emergency) in The Bahamas.

However, it is submitted that the Rules issued by the Minister of Health are ultra vires as they go beyond his authority under section 29 of the Act, and Rule 3 declares de-facto state of emergencies contrary to Article 29 of the constitution.


Background

While on The Hit Back show with Nahaja Black, Dame Joan Sawyer described Article 2 of the constitution best when she said, "Our constitution... makes the constitution the supreme law and parliament is required to act in accordance with the constitution". The relevant rules found in Article 29 expressly set out how to declare and exercise powers within a state of emergency. Parliament may only change these rules via a constitutional referendum under Article 54(3).

The Minister of Health and Wellness recently said to reporters, "we are trying to regulate COVID-19 via rules by way of the Health Services Act through amendments of section 29 [of the Act]." This statement raises many red flags as to whether the legislations are Rules issued by the Minister of Health under section 29 OR whether they are Bills to amend the Act by Parliament.

Powers of the Governor-General (GG)

Nevertheless, similar proposed amendment Bills attempt to remove the power to declare a state of emergency from the GG to Parliament, which leads to the same inconsistencies, uncertainty, and outcomes as the Public Health Emergency Preparedness Management Bill 2021. (See first note below).

In short, Clause 3 of the new Bills purport to declare de facto state of emergencies on the Bahamas inconsistent with Article 29 of the constitution and are void. If passed by both Houses, I urge the GG to withhold His royal assent under Article 63(4) and declare a state of emergency to mitigate this constitutional crisis.


Powers of the Judiciary

It is submitted that the Rules issued by the Minister of Health are ultra vires as they go beyond his authority under section 29 of the Act. Although Rules issued under section 29 of the Act may annul, vary, amend, or substitute provisions of section 11 of the Act as per section 29 (2)(b), only Parliament may amend section 29. Therefore, further clarification and expressly drafted Bills would be necessary.


Moreover, Parliament cannot apply section 29 (2)(a)(ix) as a gateway to declare a COVID-19 pandemic in the Bahamas as that section only speaks to “declaring any part of The Bahamas” as opposed to the whole or entire Bahamas. Such an amendment by way of new Rules is beyond the scope of the Act, and, more importantly, only the GG may declare a state of emergency in The Bahamas.


Therefore, whether the legislations are Rules or amendments to section 29 of the Act, it is submitted that the courts should order a 'declaration of unconstitutionality'. If any layman were to read Article 29 and then Rule 3 of both pieces of legislation, it is clear that the provisions are inconsistent and incompatible. The courts possess the power to strike down such legislation and exercise wide statutory interpretative powers in doing so.

However, Emeritus Professor of Constitutional Law at University College, London Dawn Oliver asserts that one of the problems with judicial review of legislation, accompanied with strike down powers, is that it, "would expose the judges to political pressure and criticism, not only from politicians but also often from the press and sections of the public".

Yet Dame Sawyer championed this criticism head-on. She stated, "I say only what see. I don't care what people think of me because it's not about me. It's about what is right, what is just, what is fair! If it's not those things, then forget any thing! If there is no justice, there is no peace!" One may hope the courts will uphold the rule of law and our constitution by striking down parts, if not all, of the Rules, 'reading in' the rest.


Powers of Parliament

Parliament must seek alternative options within its powers. The new government is urged to omit Rule 3, extend the state of emergency following the constitution, and review the remaining Rules in alignment with section 29 of the Act.

Alternatively, Parliament may put forward and pass similar provisions in the form of clearly expressed alterations to the constitution and call a constitutional referendum. The referendum’s chance of success is very unlikely as there is little reasoning or public support to justify transferring the power to declare a state of an emergency from the GG to any government. Indeed, unfortunately, political parties have played politics with the management of the COVID-19 pandemic and failed to listen to the most supreme law of the land, and by extension the citizens of the Commonwealth of The Bahamas.

Sincerely,

Boykin G Smith

B.A. (Hons) Politics, LL.B (Juris Doctor)

NB:

  1. For a general overview of relevant constitutional principles and the FNM's pre-election Public Health Emergency Preparedness and Management Bill 2021, our audience is encouraged to (re-)read "Why is the Public Health Emergency Preparedness and Management Bill unconstitutional?" published on 13 August 2021 in the Nassau Guardian.

  2. Notwithstanding the unconstitutionality of the new legislation, it should be noted that the Rules fall short of international COVID-19 management standards with risky 24-hour travel testing waivers and without immediate mandatory testing upon arrival at the point of entry. Most importantly, the Rules are extremely uncertain as they intend to declare a national pandemic without an expiration period. When does the PLP plan to put an end to the COVID-19 pandemic for The Bahamas?

  3. I am thankful for the countless number of Bahamians that supported our For Hope Look To The Hills election campaign. A special thank you to the Ministry of Youth Sports and Culture for the recent National Youth Award in Governance. Thank you all for your continuous support and understanding. The work continues...


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