The Tribune

By KHRISNA RUSSELL

Tribune Chief Reporter

krussell@tribunemedia.net

DAME Joan Sawyer has insisted the government has infringed upon the constitutional rights and freedoms of Bahamians who have been subject to lockdowns, leaving a window open to sue the state over this infraction.

The former Court of Appeal president, in a missive explaining her interpretation of various articles of the Constitution, said it appears that even if the competent authority makes orders to protect the citizens and residents from the novel coronavirus, a person who is detained without reasonable cause to suspect that he/she has the virus or has been exposed to it, would still have the right to sue the government for infringement of his or her constitutional rights and freedoms.

Her remarks came in response to comments from Law Reform Commissioner Dame Anita Allen, who last week argued it is lawful to lock the country down, impose curfews, quarantines, requirements to shelter in place, and wear masks in public and to impose penalties for non-compliance, provided such acts are unlawful at the time they were committed.

Dame Anita, also a former Court of Appeal president, maintained that regarding the constitutionality of the regulations, orders and protocols, the framers of the Constitution anticipated there would be times of emergency when some constitutional rights and freedoms would have to be curtailed in the public’s interest and for the public’s safety.

Dame Anita said: “In this regard, Article 29 provides ‘Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of Article 19, any provision of Article 20 other than paragraph (4) thereof, or any provision of Articles 21 through 26 (inclusive) of this Constitution to the extent that the law in question makes in relation to any period to which this Article applies, provision, or authorises the doing during any such period of anything, which is reasonably justifiable in the circumstances of any situation or existing during that period for the purpose of dealing with that situation.’

“Further, the governor general is authorised to make regulations by section 3 of the Emergency Powers Act, for the purpose of securing the public safety during an emergency, and is authorised to delegate to authorities or persons, the power to make rules and orders for any of the purposes for which the regulations are authorised to be made. Regulations authorised to be made for the purpose of dealing with emergencies may provide: for the detention of persons; restriction on their movements; and for the apprehension, trial and punishment of persons who offend against the regulations.”

As a result Dame Anita said considering, Article 29 of the Constitution, and section 3 of the Emergency Powers Act, laws may be made in an emergency which curtail a person’s right not to be arbitrarily arrested or detained; the right to the protection of the law except that provision of Article 20(4) which expressly prohibits the conviction of any act or omission which was not an offence at the time it was done; the right to the privacy of home and property; freedom of religion including the right to manifest religion in worship, practice and observance; freedom of expression; freedom of assembly and association; freedom of movement; and freedom from discrimination.

However, Dame Joan said this explanation neglected to consider several other constitutional articles. Further, she said to refer to Article 29 of the Constitution as if it stands alone is “disingenuous”.

“It is noteworthy, however, that in your presentation you made no mention of Articles 2, 17, 18, 27 and 28 of the Constitution which are also included in Part III of the Constitution and which are not mentioned in Article 29,” Dame Joan said in response.

“…No one, in their right mind would say that a government modelled on the Westminster model of democracy, does not, in a true national emergency, have the power and the duty to, for example, quarantine persons who have infectious diseases,” she also said.

She also said: “The difficulty for you and the present administration is that it has exercised an exorbitant power on the pretext that they are concerned to save lives from this ‘deadly virus’ by detaining every person in The Bahamas — except for persons they have in their wisdom deemed ‘essential workers’.

“In rushing to judgment based on an opinion tendered by a retired president of the Court of Appeal and current law reform commissioner under a contract of or for services with the government, no account was taken of the other provisions of the Constitution which must be borne in mind when advising a government, which is contemplating making such draconian orders as have been made by the present administration which have become increasingly restrictive of the exercise by ordinary persons of their entrenched human rights of freedom of movement, freedom of conscience, freedom from arbitrary arrest. . .

“Even though Article 19 and 20 are referred to in Article 29, it is relevant to note that Articles 18 and 19 also refer to Article 29. Therefore, to read Article 29 as if it stands alone or is superior to the other articles dealing with fundamental rights and freedoms, is disingenuous as well as dangerously misleading. . .”

In modern times, the detention of whole segments of a particular populace was practiced by people like Adolf Hitler and Josef Stalin, Dame Joan said.

“The United Nations’ Human Rights Convention as well as the European Convention on Human Rights were directed to the prevention of such excesses for the future yet, here in 2020, the government of The Bahamas has detained not just a segment or segments of the population but the whole population except for those they describe as ‘essential workers’.

“If your argument is correct, there is nothing wrong with the government inflicting torture, or inhuman or degrading treatment or punishment on people who have not been charged with any breach of any law let alone the orders of the administration during a declared period of public emergency,” she continued.

Before July 10, 1973, Dame Joan said, there was one occasion when the then governor placed the country under martial law and a squad of soldiers from the Gloucestershire Rangers was sent here and billeted in Oakes Field – that was during the General Strike of January 1958.

Dame Joan also said there is a “serious lack of trust in the veracity of the information being given to the public and yet they are being even more drastically restricted in the exercise of their undoubted freedoms guaranteed by the Constitution itself”.

“You also made no reference to Articles 27 and 28 of the Constitution,” she continued. “Article 27 protects from deprivation of property without prompt and adequate compensation.

“. . .Article 28 deals with the enforcement of fundamental rights of any person in The Bahamas.

“So far as relevant to the issues under consideration, Article 28 reads as follows:

“28. – (1) If any person alleges that any of the provisions of Articles 16 to 27 (inclusive) of this Constitution has been is being or is likely to be contravened in relation to him then, without prejudice to any other action with respect to the same matter which is lawfully available, that person may apply to the Supreme Court for redress.”

Dame Joan continued: “. . .It appears from the above provisions that even if the competent authority makes orders, ostensibly to protect the majority of the citizens and residents of The Bahamas from the virus, a person who is detained without reasonable cause to suspect that he/she has the virus or has been exposed to it, would still have the right to sue the government for infringement of his or her constitutional rights and freedoms. And, of course, Article 29 does not, and could not logically refer to this article.”