The Tribune

“IT IS something which is very healthy and something which is very much in keeping with the democratic spirit of the country to periodically examine the Constitution and make changes which are likely to be to the benefit of the country over the long term.” – Sean McWeeney, chair, 2013 Constitutional Commission.

IT IS curious and ironic that quite a number of those who express the view that our Constitution “requires no changes” also fetishise the US system of government and the country’s constitution, “the oldest written national constitution currently in effect”.

Entered into force in 1789, the US Constitution has been amended 27 times. The first ten amendments, known as the Bill of Rights, were certified in 1791.

The Constitution is sometimes confused with the 1776 Declaration of Independence, which famously declared: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”

Six men, including Benjamin Franklin, were signatories to both the Constitution and the Declaration of Independence 11 years earlier. Thomas Jefferson and John Adams were signatories of the Declaration but not the Constitution, while George Washington was a signatory of the latter but not the former.

When was the last time the US Constitution was amended? It may surprise many that it was last amended in 1992, after Michigan approved the 27th Amendment in May of that year.

“The … Amendment required any change to the rate of compensation for members of the US Congress to take effect only after the subsequent election in the House of Representatives.”

Intended to curtail political corruption, this Amendment was finally realized a record-setting 202 years after it was originally proposed.

The Twenty-sixth Amendment extending suffrage or voting rights to citizens 18 or older was finally ratified only in 1971. Before that one had to be at least 21 years old to vote.

The Twenty-fifth Amendment that “set forth succession rules relating to vacancies and disabilities of the office of the president and of the vice president” was proposed in 1965 by the US Congress and was ratified in 1967.

The Founders knew that the US Constitution contained compromises – including over slavery – and deficiencies requiring amending over time.

Franklin, a cunning and wily driving force behind the new republic, implored his fellow delegates to sign the document, asking those, “who may still have Objections” to “on this Occasion doubt a little of his own Infallibility”.

Thirty-nine delegates signed. But three, George Mason, Elbridge Gerry and Edmund Randolph refused, in part because the Convention, which lasted a little over 100 days, refused to draft a Bill of Rights, among other concerns.

Even among those who signed there was a recognition of the glaring hypocrisy of the document juxtaposed to the realities of human bondage in the Republic. Half of the delegates at the Convention were slave owners.

The libertine Franklin, borrowing a well-known aphorism, which he often did for his speeches and almanacs, quipped: “Our new Constitution is now established, everything seems to promise it will be durable; but, in this world, nothing is certain except death and taxes.”

Franklin, who enjoyed a friendship with philosopher David Hume, died in Philadelphia in 1790 at the age of 80. He did not live to see the certification of the Bill of Rights.

Unlike The Bahamas Constitution, which requires a national referendum for certain amendments, “the framers of the US Constitution included a provision whereby the document may be amended, generally (though not solely) by a two-thirds majority of each house of Congress followed by ratification by legislatures in three-fourths of the states.”

However, the Twenty-first Amendment which repealed Prohibition, was alternatively ratified through “ratifying conventions in three-fourths of the states.”

Constitutions are not sacred nor Holy Writ in the sense that they are handed down by a supreme being. They are human inventions, reflecting the interests, prejudices, and strengths and weaknesses of their drafters. They are written in the context of their times, which the brilliant autodidact Franklin fully appreciated.

No living American personally knew a signatory of their constitution. As a young independent nation, many of us were fortunate to personally know delegates to the Independence Constitution Conference.

Five of them are still living: Sir Arthur Foulkes, Sir Orville Turnquest, George Smith, Philip Bethel and Loftus Roker.

Our constitutional reform process was poisoned by naked and self-serving partisan politics. Having voted for the various referendum questions in the House of Assembly in 2002, the PLP then opposed the questions in the lead-up to the impending general election in the name of “process”, a strategy cum ruse to help defeat Hubert Ingraham and the FNM.

This pretext played a major role in the unnecessary and over politicisation of the process of constitutional reform, which has also occurred in other jurisdictions. The 2016 gender equality referendum was doomed to failure.

Three years earlier in 2013, Prime Minister Perry Christie held a popular vote on various gaming questions, which was not a constitutional matter. He blatantly ignored the popular vote, further poisoning the process. Mr Christie also proposed a popular vote on oil exploration.

When asked if the failure of the 2002 referendum hurt Bahamian women, Mr. Christie dismissively and insensitively said no.

When such a process is debased, it makes change, including change on less controversial matters, more difficult. The 2013 Commission Report offered: “Faced with the choice of reform or radical departure, the Commission, for the most part, opted for the former. The Commission is of the view that while the time may come for reforms that will include re-writing and re-enacting the Constitution, we have not yet attained the level of public debate, constitutional study, nor public support that would make such an effort worthwhile.”

A recent interview with Sean McWeeney in The Nassau Guardian offered the jurist’s view on the current possibilities for reform: “I for one have always suggested we might want to start with things that are really not all that grand, changes that are important but aren’t earth shattering.

“For example, people are living generally a lot longer than they did before,’ he said, adding that increasing the retirement age of judges would be a good place to start without the other controversial questions attached.”

The Commission made numerous recommendations, some of which most Bahamians are likely to agree.

There are a number which may improve governance and place certain limits on the Executive, which many, if not most Bahamians, may approve. But the political class may be reluctant because it reduces their power and influence.

By example, “The Commission recommends that there should be a limit on the size of Cabinet, and would suggest that the upper limit should be 15. It also makes the point that it does not seem to be the intention of Article 72(2) that every minister should be a member of the Cabinet although the historical practice in The Bahamas has always been to treat ministers as automatic members of the Cabinet.”

Further, “Limits should be placed on the number of MPs and Senators who could be appointed as Parliamentary Secretaries (pursuant to article 81 of the Constitution) and Ministers of State (junior ministers).

“The potentially overlapping roles of Parliamentary Secretaries and junior ministers should also be clarified. As it stands, there is no constitutional provision which speaks to the appointment of junior ministers.”

And a recommendation at which some politicians may especially balk: “The Commission recommends the establishment of the office of Contractor General as a public office, with security of tenure, along the lines of the Auditor General. Such a person would be responsible for overseeing the award of Government contracts and ensuring that public funds are expended fairly and that value is received for money expended.”

The 2013 Commission did tremendous work that should be revisited, along with public education on the Constitution, which is an ongoing and involved process.

Instead of the ad nauseam and tedious replaying of certain events on the Parliamentary Channel as well as its gross underutilization, the Channel can be transformed into a C-SPAN-like platform found in the United States.

It might be rebranded the Bahamas Civics and History Channel featuring parliamentary debates, civil society events and novel, well-produced programming on civics, history, government and the Constitution.

Such a channel may be utilised for students in the school system as well as for public education on various areas of national life, with original programming designed, written, directed and produced by Bahamian creatives, documentarians and writers.