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.