Why is the Public Health Emergency Preparedness and Management Bill unconstitutional? (Full Article)

The FNM has tabled the Public Health Emergency Preparedness and Management Bill 2021, which is alleged to allow for a “sub-constitutional legal framework” to declare a state of emergency. Part I Clause 3 sets out the purpose of the Act, which is to make provisions for the implementation of policies and strategies that are reasonably required and justifiable in a democratic society with six goals in mind. However, it is humbly submitted that the Bill will allow for the declaration of a de-facto state of emergency contrary to the constitution.

Background

Although similar legislation has been passed and enacted in other jurisdictions like New Zealand, the distinction between our legal systems hinges on the nature of codified and uncodified constitutions. Like the UK, New Zealand's constitution is a mixture of statutes and conventions/principles. For example, 'parliamentary sovereignty' was defined by A.V. Dicey as the constitutional principle that means “Parliament [...] has, under the English constitution, the right to make or unmake any law whatever: and, further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament." This provides great flexibility for the New Zealand parliament to enact new laws that may be added to the mixture of constitutional legislation without having to call a referendum. Meanwhile, contrary to the notion of parliamentary sovereignty, The Bahamas’ constitution is the supreme law of the land. The relevant rules in Article 29 expressly set out how to declare and exercise powers within a state of emergency. The government may only change these rules via a constitutional referendum under Article 54(3).

Powers of the Governor-General (GG)

Clause 4 of the Bill removes the power to declare a state of emergency from the GG to the Minister of Health - Mr Renward Wells, only if the Prime Minister (PM) agrees in writing and after considering the advice of the Chief Medical Officer. It is submitted that the proposed Bill would allow for the declaration of the state of emergencies contrary to Article 29 of the constitution and is therefore unconstitutional. If and when it is passed by both Houses, I urge the GG to withhold His royal assent under Article 63(4) to mitigate an even greater constitutional crisis.

Powers of the Judiciary

If enacted, it is submitted that the courts should order a 'declaration of unconstitutionality' - a variation on the method currently used under s4 of the UK's Human Rights Act 1998. If any layman were to read Article 29 and then Clause 4 of the proposed Bill, it is clear that the provisions are inconsistent and incompatible. Parliament should consider alternative legislative options.

Parliament may put forward and pass similar provisions in the form of clearly expressed alterations to the constitution and call a constitutional referendum/election. 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 this current incompetent government. Therefore, Honorable Members are urged to amend the Bill to omit clause 4 AND the waiver of procurement rules, extend the state of emergency following the constitution, and amend the remaining management provisions where possible.

Alternatively, if enacted, it is submitted that the courts possess the power to strike down this primary legislation, and exercise wide statutory interpretative powers in doing so. However, Lord Phillips described the hesitation of the courts given that "[o]ne would be considering a constitutional crisis before you could envisage the courts purporting to strike down primary legislation. Before you got that, the courts would say [...] "We have pulled you back from the brink. Are you really going to persist with this?" That is what the House of Lords did as the Privy Council in Anisminic. They threw down the gauntlet and it was not taken up[...]" [Q208 Lord Phillips]

In our case, one may hope the courts will uphold the rule of law and our constitution by striking down parts, if not all, of the Act, 'reading in' the rest. However, as Professor Dawn Oliver asserted, one of the problems with judicial review of primary 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".

Should this be a constitutional amendment Bill, which leads to a constitutional referendum/election?

Should the AG resign and a vote of no confidence in the PM be held?

Should the PM just dissolve parliament and call an election?

Sincerely,

Boykin G Smith

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

Independent Candidate for Garden Hills