NASSAU, BAHAMAS — Attorney Alfred Sears, QC, has raised questions about the use of the emergency powers by the executive and Parliament’s oversight of fundamental rights days after the governor general signed a new proclamation declaring a state of public emergency in The Bahamas.
The proclamation came into effect at midnight on Tuesday after the government failed to pass a resolution extending the original state of emergency proclamation, which expired on Monday night.
Sears said Parliament’s oversight is critical for fundamental rights guaranteed by the constitution.
He said when the governor general signed the proclamation of emergency, the legal effect suspended rights afforded by the constitution, including, but not limited to the protection from arbitrary arrest or detention; right to privacy of home and other property; protection of freedom of conscience; protection of freedom of expression; freedom of assembly and association and freedom of movement.
Sears said without approval from Parliament, a proclamation of an emergency cases to have legal effect after 14 days unless Parliament passes a resolution extending the proclamation of emergency up to six months from the date it would have otherwise expired.
As pointed out by the Queen’s Counsel, the House of Assembly and Senate debated and extended successive coronavirus resolutions, the last of which occurred on May 8 and expired on June 29.
In a national address last week Sunday, the prime minister announced The Bahamas was entering the second phase of the Ministry of Tourism’s reopening plan, allowing hotels and vacation rentals, taxi services and public transportation, and commercial carriers to resume operations.
Sears said the Emergency Powers Act provides that all emergency regulations require the affirmative vote of Parliament.
He questioned whether The Bahamas was dealing with a new public emergency or a continuation of the public emergency declared in mid-March.
“If the new June 29 proclamation of emergency and regulations are in effect, merely a continuation of the same COVID 19 public emergency that was declared on March 17, 2020, should they not be subject to the strict requirement of section 5 of the Emergency Powers Act, which mandates prior Parliamentary approval of any emergency regulations, or should the government be allowed a fresh fourteen days of emergency powers without Parliamentary consent? Sears wrote.
“The appropriate answer, in my view, is for the government to seek the approval of Parliament for the continuation of the emergency regime by way of a resolution before both the House of Assembly and the Senate, consistent with the government’s intention contained in the resolution tabled in the House of Assembly on June 29, 2020 and section 5 of the Emergency Powers Act.
“This course of action will preserve the spirit of Article 29 of the constitution, the Emergency Powers Act, [and] ensure Parliamentary oversight and maintain public confidence.”
Attorney General Carl Bethel apologized for the “procedural oversight” in allowing the declaration to lapse.
While the prime minister tabled the resolution to extend the emergency regulations to July 31 on Monday, the rules of Parliament require 24-hour notice between the tabling of any motion and the debate of that motion.
The rule can be waived to allow for debate, but Bethel said the official opposition did not support the waiver.
Meanwhile, Sears asserted the prime minister ought to have consulted with the leader of the official opposition, the speaker of the House, and president of the Senate before the governor general signed a proclamation of public emergency.
He charged the chief justice should be required to appoint an independent and impartial emergency appeal tribunal at the signing of the proclamation of emergency to review claims of people who have been arbitrarily arrested.
Sears recommended following the public emergency regulations, there should be a review of the public emergency provisions of Article 29 of the constitution and the Emergency Power Act to determine how to better secure fundamental rights and parliamentary oversight during any future public emergency proclamation.”
He suggested the period for legislative oversight of 14 days should be reduced , and parliamentary extensions of proclamation of public emergencies require a super majority vote of three, fifths or four fifths such as Kenya or Trinidad and Tobago.