NASSAU, BAHAMAS — Attorney General Carl Bethel once again defended the government’s decision to declare a state of emergency amidst the ongoing pandemic, suggesting that it was the only way policymakers could implement the necessary restrictions.
As he opened the Senate debate on a resolution to extend the emergency orders until May 23, Bethel hit out at comments made in a Nassau Guardian editorial that claimed the government could have implemented the same protocols through Parliamentary legislation, calling the observations legally ill-advised.
Bethel said: “The allegation that an MP and minister and the prime minister would make demonstrably false statements to the House of Assembly is a most serious allegation as it cuts to the paramount duty of ministers and members of Parliament to always speak the truth in Parliament.”
He charged that the prime minister is owed an apology for the allegations, which he claimed was “going a little too far.”
The attorney general pointed to a Trinidad and Tobago judicial ruling — which he used to advise his Cabinet colleagues — that deals with the difference between health ordinances made under laws passed by Parliament and emergency powers, which are constitutionally granted powers.
He insisted that there are clear limitations on health regulations made under statutes passed by Parliament.
Pointing to the same ruling, Bethel noted that the power to impose a curfew and the like, cannot arise from ordinary legislation passed by Parliament.
He explained that the “only way to have the full plenitude of powers” and in particular the power to impose a curfew to prevent the spread of infection, is by way of an emergency declaration under the Constitution.
“Public health regulation to prevent the spread of infections and dangerous diseases falls within a narrow campus of exceptional laws which permit a minister leeway to restrict certain…rights and freedoms under the Constitution,” Bethel said, quoting the ruling.
“It is often necessary in these matters to act quickly and efficiently to ensure that the spread of the disease is contained as much as possible.”
He charged that other protocols implemented by the government throughout the pandemic — including the shutdown of businesses except for essential services, island-specific lockdowns, travel bans and restriction of travel from islands facing impending lockdown — could only be done under these emergency powers.
“The powers of the government to protect the Bahamian people would be entirely crippled,” Bethel continued.
“The efforts of the government to protect the lives and preserve the national healthcare system would be totally crippled if we were hampered by this principle of proportionality and that in every case we had to show this person and this particular business posed an active threat.”
Additionally, he put forth that mitigation of the pandemic through statute would have also put the government at risk of countless legal challenges.
“This is a decision that is directly in point in every Westminster constitutional jurisdiction around the world,” the attorney general added.
“While it is not a decision of our Supreme Court and therefore not binding, it is a highly persuasive authority because it addresses the two critical issues before us — the powers granted by Parliament and powers that are granted and can be granted by the Constitution.
“Therefore, the impact of this particular ruling is that were we to operate under statute, there would be considered legal challenges to the plenitude of these actions that have been taken.
“The efficacy of such laws would be cast into doubt and the government has always, at every step of the way, erred in favor of seeking to pertain the highest degree of legal certainty so that the public would not have any justifiable reason to doubt the efficiency and effectiveness of the legal regime, which we must all adhere to.”
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