PRESENTATION BY BAHAMAS FAITH MINISTRIES

INTERNATIONAL

BEFORE

THE CONSTITUTIONAL REVIEW

COMMISSION OF THE
COMMONWEALTH OF THE
BAHAMAS
BY DR. MYLES MUNROE
CONSULTATION DOCUMENT
ISSUE DATE: JANUARY 17TH 2013

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TABLE OF CONTENTS

HEADING PAGE #/REFERENCE

INTRODUCTION......................................................................................................... ...... 3

PREAMBLE......................................................................................................................... 3-4

THE CONSTITUTIONAL POWERS OF THE PRIME MINISTER.............................4-7

REVIEW OF CONSTITUTIONAL PUBLIC OFFICERS…………………………...…7

Office of The Auditor General……………………………………………………………….8-9

Office of The Director of Public Prosecutions……………………………………………….9-10

Office of the Attorney General………………………………………………………………..10

THE SENATE.......................................................................................................................... 11

DISCRIMINATION AGAINST WOMEN......................................................................... 11-13

CITIZENSHIP....................................................................................................................... 13-20

GENERAL OUTLINE OF THE

OMBUDSMAN...................................................................................................................... 20-23

THE PRIVY COUNCIL......................................................................................................... 24

CONSTITUTIONAL MONARCHY OR COMMONWEALTH

REPUBLIC............................................................................................................................. 24

CONCLUSION....................................................................................................................... 25

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To: Constitutional Reform Commission

From: Dr. Myles Munroe President, Bahamas Faith Ministries International

Date: January 17, 2013

Re: SUBMISSIONS ON CONSTITUTIONAL REFORM

Dear Mr. Chairman and Members of the Commission:

Thank you for this opportunity to appear before you and share some of my thoughts on the
important constitutional issues you are considering. In the interest of time I will be as succinct
and to the point as possible. What follows is the result of discussion internally within BFM‟s
leadership team as well as after exhaustive discussions with some of our attorney members.

In making recommendations to the Constitutional Reform Commission (“the

Commission”), below is an analysis of various Sections and Articles of the Constitution that we
submit should be given careful consideration.

Our overriding objective is to identify Articles in the Constitution:

1. That protect our traditional values and cultural norms

2. That have an adverse effect on our current state of affairs and that will negatively
affect the future of our nation if left unchecked,
3. That violates or infringe on natural law and human natural justice.

1. THE PREAMBLE
The Preamble to the Bahamian Constitution states as follows:

“WHEREAS Four hundred and eighty-one years ago the rediscovery of this Family of Islands,
Rocks and Cays heralded the rebirth of the New World;

AND WHEREAS the People of this Family of Islands recognizing that the preservation of their
Freedom will be guaranteed by a national commitment to Self-discipline, Industry, Loyalty,
Unity and an abiding respect for Christian values and the Rule of Law;
NOW KNOW YE THEREFORE:
We the Inheritors of and Successors to this Family of Islands, recognizing the Supremacy of God
and believing in the Fundamental Rights and Freedoms of the Individual, DO HEREBY
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PROCLAIM IN SOLEMN PRAISE the Establishment of a Free and Democratic Sovereign
Nation founded on Spiritual Values and in which no Man, Woman or Child shall ever be Slave or
Bondsman to anyone or their Labour exploited or their Lives frustrated by deprivation, AND DO
HEREBY PROVIDE by these Articles for the indivisible Unity and Creation under God of the
Commonwealth of The Bahamas.”

The Preamble to the Constitution is a brief introductory statement of the Constitution's

fundamental purposes and guiding principles; it is the basis upon which the Constitution rests. It
states in general terms, and courts have referred to it as reliable evidence of, the founding
fathers intentions regarding the Constitution's meaning and what the Constitution seeks to
achieve. In our view the Preamble, in its current form, need not be amended or revised and we
conclude that it is still relevant today. It has and continues to affirm the values, traditions,
culture and beliefs of the citizens of the Commonwealth of The Bahamas.

Recommendation

We submit that the Preamble should be incorporated into Chapter 1 of the

Constitution as a new Article 2 because of its importance and to reinforce its
importance as the fundamental guiding principle on which the country was
founded and thus given the full weight of law that may not necessarily apply
to a preamble. It is therefore our recommendation that the preamble be
enshrined in the constitution with the full weight of constitutional law so as to
assure its abiding role as a standard and reference in the interpretation and
application of the rule of law in the commonwealth of the Bahamas.

2. THE CONSTITUTIONAL POWERS OF THE PRIME MINISTER

The office of Prime Minister is undoubtedly a significant one and His duties and powers are
evident throughout the provisions of the Bahamian Constitution. However, the central concern is
whether the Prime Minister's powers are excessive and should in any way be curtailed. In this

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vain, we highlight below the far reaching powers of The Prime Minister as enshrined in our
Constitution.

Article 34 (1) (a) & (b) of the Constitution speaks to the involvement of the Prime Minister
in appointing a Deputy Governor General in the event that the Governor General is unable to
fulfill his duties for a short period of time.

In Article 39 (4) which addresses the Composition of the Senate, it is noted that the
sixteen members of the Senate shall be appointed by the Governor General, twelve of which
shall be appointed by him, acting on the advice of the Prime Minister. The role the Prime
Minister plays here is as stated in Article 40, which is to ensure that the political balance of the
Senate reflects that of the House of Assembly at the time. We shall comment on the Senate in
due course.

Chapter VII of the Constitution covers the Judicature and addresses the establishment of
the Supreme Court. The Prime Minister is a part of the Executive arm of Government; the
Executive arm should be independent from that of the Judicature. However, Article 94 (1) states
that the Chief Justice shall be appointed by the Governor General on the recommendation of the
Prime Minister after consultation with the Leader of the Opposition. Consultation with the
Leader of the Opposition usually appears to be a mere formality and it is noteworthy that the
Judicial and Legal Services Commission or some other independent body does not have the
ability to scrutinize this appointment prior to final confirmation.

The Prime Minister also has the power to give advice on the selection of Acting Justices
as evident in Article 95 (1). Similarly, in Article 96, the Prime Minister can give
recommendation to the Governor General on the extension of tenure of a Supreme Court Justice.
The Prime Minister also has influence over the removal and suspension of a Supreme Court
Justice.

Concern

It is possible to question whether the Judicature is indeed independent from the Executive
as it should be. The Prime Minister has significant Constitutional power to make
recommendation or influence the selection of Justices and Acting Justices.
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Recommendation

The Prime Minister should nominate a person for the position of Chief
Justice and the said nomination should be subject to the scrutiny and
approval of either a fully independent Judicial and Legal Services
Commission or a sub-committee of the House of Assembly by way of televised
public hearings. All other judicial nominations should be subject to scrutiny

3. CALL GENERAL ELECTIONS

Article 66 covers Prorogation and dissolution of Parliament. Based on this section, the
Prime Minister advises the Governor General as to when parliament shall be dissolved.

Recommendation

We submit that rather than vesting the Prime Minister with such wide
powers, in essence calling for a general election when convenient for him and
his political party, there should be a set time as to when parliament shall be
dissolved and general elections are called. Some discretion can be retained by
the Prime Minister, for example reasons can be outlined that would
necessitate or justify the calling of a general election prior to fulfilling a five
year term in office.

4. CONSTITUENCIES COMMISSION
The Prime Minister‟s power also extends to the appointment of various public bodies,
which in many respects should be independent from the political directorate or the Executive

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Branch of Government. Article 69 of the Constitution addresses the Constituencies
Commission. The Prime Minister is not a member of the Commission, however 69 (1) (c) says it
shall include two members of the House of Assembly appointed by the Governor General acting
in accordance with the advice of the Prime Minister, along with the Speaker of the House of
Assembly (a member of the governing party) and a Justice of the Supreme Court. Without
question, the Prime Minister, acting in this capacity may influence those who sit on this
Commission and is always open to criticism as a result that he is only acting in the interest of the
incumbent Government‟s re-election efforts.

Recommendation

We submit that an independent election boundaries commission is

necessary to encourage fairness prior to and during election season. It should
be made up of persons who are not members of Parliament with two
appointments by the Prime Minister, two by the Leader of the Opposition and
two Supreme Court Judges.

5. PUBLIC SERVICE COMMISSION

The establishment of the Public Service Commission is addressed in Article 107.
Members of this Commission shall be appointed by the Governor General who acts on the
recommendation of the Prime Minister. The Public Service Board of Appeal covered in
Articles 114 and 115, the Judicial and Legal Service Commission engrossed in Articles 116
through 117; as well as the Police Service Commission addressed in Articles 118 through 121,
are all public bodies in which the Prime Minister has significant influence over the selection of
members.

Recommendation

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 We submit that mechanisms should be put in place to ensure that the
Judicial and Legal Services Commission is not merely a rubber stamp for the
wishes of the Prime Minister. The overriding principle is that
politics should not select law; politics should be subject to
law. We recommend that the commission be made up of two members
appointed each by the Prime Minister and the Leader of the Opposition and
three persons by the Bahamas Bar Council with specific criteria being
identified in order for persons to be eligible to sit on this commission.

The Public Service Commission should also have a formula for

appointment that prevents the Prime Minister from controlling all of the
appointments.

6. TERM LIMITS FOR THE PRIME MINISTER

We do not support term limits for the Prime Minister. It is our submission that the public
should decide whether they wish to retain the services of a serving Prime Minister based on their
perception of his performance.

We conclude that the Prime Minister has unchecked influence over

every appointed public body in the Commonwealth. He has the constitutional
power to give recommendations on who is appointed, the duration of tenure as
well as temporary replacement in case of illness. These powers may work well
in the hands of a benevolent Prime Minister, but could otherwise be subject to
abuse and could lead to dictatorial tendencies. We submit that the powers of
the Prime Minister should be carefully reviewed, revised, and in some

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instances curtailed. All persons that the Prime Minister would wish to
nominate for significant constitutional positions should be scrutinized by a
commission set up for that purposed and such commissions should be free
from political interference. The present powers of the Prime Minister create
the potential for misuse of these powers threatens co verse, manipulate and
control the appointees.

7. REVIEW OF CONSTITUTIONAL PUBLIC OFFICERS

Generally speaking we recommend that all deliberate steps be taken to ensure
or strengthen the independence of the following constitutionally named public
officers with the intent to ensure and strengthen the separation of Powers:

1. The Auditor General

2. The Director Of Public Prosecutions

3. The Attorney General

4. The Commissioner of Police and

5. The new office of an Ombudsmen

Office of the Auditor General

The Constitutional Commission should consider further enshrining and strengthening the
Office of the Auditor General into the Constitution?

The role of the Auditor General is to foster transparency and accountability by

conducting independent audits of the various governmental departments and agencies. Although
the Auditor General is noted in the Constitution, (ARTICLE 136) there are concerns regarding
the authority and independence of the office. In order to ensure the independence of the
Auditor General, his office should be able to fund itself out of the Consolidated Fund (i.e. he

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should be given a budget to conduct his office independently instead of seeking funds from
the Minister of Finance) and he should be able to have full control over his staff.

He should also be given security of tenure to avoid any political influence or

interference in his duties. The appointment should be made under Public Seal by the
Governor General on recommendation of the Public Service Commission and with no need to
consult the Prime Minister.

In support of the above recommendation the Commission should take into account that
on 22 December 2011 the 66th United Nations General Assembly adopted the Resolution
A/66/209 promoting the efficiency, accountability, effectiveness and transparency of public
administration by strengthening supreme audit institutions (such as Office of the Auditor
General in The Bahamas)”.

The UN General Assembly Resolution represents a milestone in the nearly 60-year

history of
International Organization of Supreme Audit Institutions: Therein, the General Assembly
for the first time expressly recognizes that:
• SAI/Office of the Auditor General can accomplish their tasks objectively and effectively
only if they are independent of the audited entity and are protected against outside
influence; and also recognizes the
• Important role of SAI/Office of Auditor General in promoting the efficiency, accountability,
effectiveness and transparency of public administration, which is conducive to the achievement
of national development objectives and priorities as well as the internationally agreed
development goals, including the Millennium Development Goals.

Office of Director of Public Prosecutions

The Constitutional Commission should consider the post of Director of Public Prosecutions
be enshrined and strengthened in the constitution and further ensure its independence
from the post of the Attorney General?

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 The Attorney General, by Article 72 of the Constitution, is a member of the Executive,
which clearly leaves her or him open (potentially) to some measure of influence in the
discharge of her duties by the Prime Minister and her Cabinet colleagues. The fact that the
Attorney General sits in Cabinet is reason for concern. An independent DPP removes the
element of political interference (real or perceived) in the decisions relating to criminal
prosecutions.

The most important function of the DPP is to decide how prosecutions are handled
(independently of the Government and/or political interference). The DPP should also act
with the utmost integrity, honesty and professionalism, while being open and accountable as
"Justice must not only be done, it must be seen to be done". Based on the above, the DPP
should have the constitutional rights as listed in Article 78 and security of tenure and
qualifications similar to that of a Justice of the Supreme Court. The DPP should be
appointed in a similar manner to a Justice of the Supreme Court by the Judicial and Legal
Services Commission.

The Office of the DPP should have constitutional independence with full
administrative and litigation powers. Additionally, the office should also have the power to
direct the Commissioner of Police to investigate any information or allegation of criminal
conduct and to exercise all powers of prosecution and may in that capacity institute and
undertake criminal proceedings against any person before any court in respect of any offence.

In order to ensure the independence of the DPP, this office should be able to fund
itself out of the Consolidated Fund (i.e. he or she should be given a budget to conduct his
office independently instead of seeking funds from the Minister of Finance or Attorney
General‟s Office) and he or she should be able to have full control over his staff.

Section 71A of Bermuda‟s Constitution and Section 57 of The Cayman Islands Constitution
(2010) are a good reference points on this office.

Office of the Attorney General

With the proposed transfer of the criminal prosecution responsibilities in Article 78 to the
DPP, the Attorney General will assume full responsibility for all civil and commercial
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matters including international treaties, law reform and drafting and the role of the
Bahamas Government‟s chief legal advisor. We note that in the United Kingdom, the Attorney
General although a Member of Parliament by convention is not a member of the cabinet although
they may attend meetings to give legal advice. It is considered preferable to draw a distinct line
between the office holder and the political decisions on which they are giving legal advice. We
submit that due consideration needs to be given to depoliticizing the office of the Attorney
General.

Recommendation

We accept that there are compelling arguments for and against

allowing the Attorney General to remain a political person, which
should be fully explored. We lean toward removing or minimising
the political involvement of the Attorney General. At minimum if
the responsibility for criminal prosecutions is removed, we would
consider this a great step forward in reducing the possibility of
political interference, which can be even more pronounced in small
island states like ours. The essence of true justice in a true
democracy is “the separation powers”.

Note: The above offices should not be housed in the same facilities to
further ensure transparency, separation of power and
independence.

8. THE SENATE
Article 40 of the Constitution says,” In the exercise of the functions conferred upon him
by Article 39(4) of this Constitution, the purpose of the Prime Minister shall be to secure that the
political balance of the Senate reflects that of the House of Assembly at the time.”

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Recommendation

We propose that the Senate can be more effective if it doesn‟t automatically

reflect the political makeup of the House of Assembly. The Senate should be
an elected body in its own right. This will allow its members to contribute
meaningfully to the legislative activities of the country and also it would dilute
the power of the Prime Minister. Further to this, under the Constitution, the
requirements of becoming a Senator should be amended to reflect the
required age of 21 as is the case for membership into the House of Assembly.

9. DISCRIMINATION AGAINST WOMEN

We believe that Constitutional reform is also necessary with regard to discrimination.

The Bahamas stands amongst Middle Eastern countries like Kuwait and Lebanon and the
majority of the Arab countries which do not allow a woman to pass citizenship to her child
as of right. Also, a Bahamian woman cannot pass citizenship to her foreign spouse as of right
even though a foreign woman is entitled to this benefit under the Constitution to take on the
citizenship of her Bahamian husband upon her applying and taking the oath of allegiance.

Article 8 of the Constitution states that:

“A person born outside The Bahamas after 9th July 1973 shall become a citizen of The
Bahamas at the date of his birth if at that date his father is a citizen of The Bahamas
otherwise than by virtue of this Article or Article 3(2) of this Constitution.”

There is no identical provision outlined in The Bahamian Constitution for a woman save that
Article 9(1) states that:

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“Notwithstanding anything contained in Article 8 of this Constitution, a person born legitimately
outside The Bahamas after 9th July 1973 whose mother is a citizen of The Bahamas shall be
entitled, upon making application on his attaining the age of eighteen years and before he
attains the age of twenty-one years, in such manner as may be prescribed, to be registered as a
citizen of The Bahamas…”

It is reflected in Article 10 of the Constitution that a Bahamian man can as of right

pass Bahamian citizenship to a non-Bahamian woman who is his spouse but there is no
provision outlined to reflect that a Bahamian woman can as of right does the same who is
her husband. The Article states that:

“Any woman who, after 9th July 1973, marries a person who is or becomes a citizen of The
Bahamas shall be entitled, provided she is still so married, upon making application in such
manner as may be prescribed and upon taking the oath of allegiance or such declaration as may
be prescribed, to be registered as a citizen of The Bahamas.”

It is also interesting to note that Chapter III of the Constitution covers the “Protection of
Fundamental Rights and Freedoms of The Individual” and Article 26(3) under that Chapter
states the following:

“In this Article, the expression “discriminatory” means affording different treatment to
different persons attributable wholly or mainly to their respective descriptions by race, place of
origin, political opinions, colour or creed whereby persons of one such description are
subjected to disabilities or restrictions to which persons of another such description are not made
subject or are accorded privileges or advantages which are not accorded to persons of another
such description.”

What is very peculiar about this Article is that it is completely silent about gender
discrimination.

THE BAHAMAS MUST EVENTUALLY CHANGE THE CONSTITUTION TO

REFLECT THE EQUALITY OF MALE/FEMALE GENDER RIGHTS

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(Article 26 (Fundamental Rights & Freedoms) need to be amended to reflect the inclusion
of discrimination against gender as fundamental protection and to make it consistent with
Article 15.)

Notwithstanding the facts outlined above the Bahamas is conflicted in maintaining such
discriminatory laws in its Constitution because The Bahamas did on October 6, 1993
accede to the United Nations Convention on the Elimination of All Forms of Discrimination
against Women (“CEDAW”) and accession is regarded as being the same as ratifying the
tenets of the Convention.

In short, the Convention defines discrimination against women as "...any distinction,

exclusion or restriction made on the basis of sex which has the effect or purpose of
impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of
their marital status…of human rights and fundamental freedoms in the political, economic,
social, cultural, civil or any other field.”

By accepting the Convention, The Bahamas has committed itself to undertaking a series
of measures to end discrimination against women in all forms, including the commitment to
incorporate the principle of equality of men and women in its legal system, abolish all
discriminatory laws and adopt appropriate laws prohibiting discrimination against women.

Recommendation

That all gender based bias that in any way disadvantages women be
frrremoved from the Constitution. This principle upholds the tenants of the
spiritual values implied in our Preamble.

It should be noted that we do not think it is necessary to enshrine any

other groups in the Constitution under the heading of preventing
discrimination. We think adding gender discrimination sufficiently identifies
all persons under the Constitution who require protection.
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10. CITIZENSHIP

COMMENTS ON CITIZENSHIP REFORM IN THE BAHAMAS

A. The concept of citizenship is coterminous with nationality although it is possible to have

a nationality without being a citizen. It is also possible to have political rights without
being a national of a State; an example of this is seen in historical instances where
Commonwealth citizens from former British colonies are permitted to participate in the
general elections in England. Citizenship can be defined as a state of belonging to a
country or in, as in the case of a supranational entity like the European Union, a
political community. Citizenship entitles the holder with the greatest degree of benefits
that the country provides and a level of protection from an international legal perspective.
It confers a permanent right to reside in and participate fully in every aspect of that
country. Citizenship can be acquired in several ways, for example, by birth, by
descent, by registration and by naturalization. Citizenship at birth is conveyed through
jus soli (right of soil) or through jus sanguinis (right of blood/descent).

B. Countries such as The Bahamas do not offer automatic birthright citizenship to children
of immigrants or non-citizens but rather confer citizenship by applying policies based on
jus sanguinis, that is, based on the nationality of one or both of the child‟s parents (see
Chapter 2, Sections 6 and 7 of the Constitution of the Commonwealth of The
Bahamas.

C. Based on the foregoing, here are some recommendations:

General Recommendation

That due to the complexities, sensitivities, and the potential national

security concerns relative to this issue, the Government should

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establishes a non partisan „Commission on Citizenship and Immigration
Reform.‟

The purpose of the Commission is to conduct research and make recommendations to the
Parliament of ways to define and change the nation‟s policy on citizenship and
immigration matters in the Constitution and the law. It should be made up of at least
15 members from various backgrounds including reputable Bahamians of Haitian,
Jamaican, American, etc descent. This Commission should be chaired by a well respected
Bahamian with no public allegiance to any political party.

The Commission should identify a clear process leading to citizenship that is widely
circulated in the public domain and the final decision on citizenship should be
established by way of criteria that negate the need for the political directorate
making the final decision. The final decision should be made by a respected public
body, which is subject to final approval by the Bahamas Government.

Constitutional Concern 1 (as it relates to children of a married Bahamian parent)

Unlike the case of a married Bahamian male who can automatically transfer citizenship
to his child, where a child is born in The Bahamas to Bahamian woman who is married to
the non-Bahamian father, that child is not regarded as a Bahamian citizen, rather, that
child is eligible to be registered as a citizen on his attaining the age of 18 years or within
12 months thereafter in such manner as may be prescribed by law. The social impact of
this current policy is that the child does not belong to anywhere for 18 years of their
life. In essence for 18 years the child is stateless without legal or official status and
thus due to the psychological, emotional, physiological, and mental disillusionment
impacting on him or her, the sense of disconnect and lack of loyalty and allegiance
breeds contempt. This scenario creates the potential for antisocial response to the
society as a whole.

Recommendation 1

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 There should be no distinction in the Constitution between
children born to married Bahamian men (who have automatic
Bahamian citizenship) and children born in or outside of The Bahamas
to married Bahamian women. Children born to any Bahamian parent
should have the same automatic entitlement to citizenship regardless of
the nationality of the other parent.

Constitutional Concern 2 (as it relates to unmarried Bahamian parents)

The Bahamian male is able to pass on citizenship automatically to his

offspring whether born overseas and whether legitimate or not. This is clearly
discriminatory.

Recommendation 2

The position of children born outside The Bahamas to unmarried

Bahamian parents, male or female, should be the same and should
provide for the automatic acquisition of citizenship, subject to proof of
paternity in the case of the Bahamian male by a Declaration of
Paternity from the Magistrate or Supreme Court.

Constitutional Concern 3 (as it relates to spouses of Bahamians)

The right of a spouse of a Bahamian male to register as a citizen by virtue of

her marriage is protected by the Constitution; however, there is no corresponding
constitutional right for a spouse of a Bahamian woman to register as a citizen.

Recommendation 3

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 The Constitution should provide that spouses of all
Bahamian citizens (male or female) should be treated equally
and that such persons upon marriage should have a right to
reside and work in The Bahamas and own property jointly and
upon application the right to become a Bahamian citizen 5
years after marriage subject to such exceptions or
qualifications as may be prescribed in the interests of national
security or public policy and to reduce marriages of
convenience.

Constitutional Concern 4 (as it relates to marriage)

The concept of marriage is not defined or protected by the Constitution,

based on our Christian heritage, and in light of the international pressure that have
confused the concept of marriage in various countries, it is now necessary the our
constitution define and protect marriage.

Recommendation 4
Furthermore, marriage should be defined and protected
in the Constitution as a union between a man and a woman.

Constitutional Concern 5 (as it relates to children of Non Bahamian parents)

Where a child is born in The Bahamas to non-Bahamian parents who reside in

The Bahamas, that child is not regarded as a Bahamian citizen. The social impact of this
current policy is to deprive a child of any official status or sense of reality of belonging

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for 18 years of his or her life. Moreover, this category of persons must be treated with
careful consideration and sensitivity.

Recommendation 5

We believe that application of jus soli is the most humane policy

with respect to the treatment of children of non Bahamian residents
whether the parents are documented or not.

We therefore recommend that all children born within The

Bahamas should have entitlement to citizenship in The Bahamas
irrespective of their parents’ immigration status. This entitlement will arise on
the birth (in the case of children of legal residents) and remain in effect until the child
turns 21 years old and would be subject to several public policy guidelines. Between

the ages of 1 and 18 years, the child should be offered provisional

citizenship similar to Permanent Residency status with all rights
available to a Permanent Resident. Upon turning 18, the child would be
entitled to apply for a Bahamian Passport and be registered as a citizen
upon successful completion of a citizenship and allegiance test, and
swearing the oath of allegiance.

Legal Support from the Common Law tradition

The modern policies regarding birthright citizenship in some Common Law

jurisdictions such as the United States are predicated upon the tenants of Natural law, and
British common law. In 1608, the English court established the common law foundation
in Calvin's Case (1608, Coke Report 1a, 77 ER 377), by ruling that a person's status
was vested at birth, and based upon place of birth, a person born within the king's

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dominion owed allegiance to the sovereign, and in turn, was entitled to the king's
protection.

Countries which allow birthright citizenship, directly or indirectly, recognize the

right of all people to live as humans. Once persons are afforded the right to life and
liberty, the society will benefit. For example, the United States has benefited from
immigration over the past centuries. Immigrants from Africa, Asia, and Europe
contributed their expertise in many fields to form the United States into the military and
economic superpower that it is.

Bahamian Legal Support

In 2002, the Parliament of The Bahamas passed the Status of Children Act. Its
purpose was to provide “illegitimate children” now referred to as „children born out of
wedlock‟, with the same rights and protection as „children born in wedlock‟. The
legislators finally recognized the fact that children are not responsible for their birth
status or the circumstances in which they were conceived or born. All children are
innocent and helpless at birth. It was therefore unjust to punish children for the
conduct of their parents. The same reasoning should be applied to children born to
undocumented parents. Recognizing the fact that children of undocumented
immigrants are innocent victims of circumstance, all children born within a country
should have automatic citizenship in that country irrespective of whether or not
their parents‟ had legal status when they entered into that country. Once again,
these children should not be punished for the behavior of their parents.

U N Support

Citizenship should be granted based on the conviction that all humans have a right
to life and liberty, and the international community has observed this through the creation
of the United Nations Declaration on Human Rights, especially Article 15. Article 15
of the Universal Declaration of Human Rights states: ‘Everyone has the right to a

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 nationality. No one shall be arbitrarily deprived of his nationality nor
denied the right to change his nationality.’

Listed rights and responsibilities of citizens to be enshrined in the

Constitution
1. There should be enunciated rights for citizens to enjoy (subject to certain exceptions):

i. entitlement to a Bahamian passport and to Bahamian consular assistance overseas

ii. entitlement to leave The Bahamas and return at any time without any immigration
restrictions
iii. immunity from arbitrary deportation
iv. entitlement to register overseas born children as Bahamian citizens by descent (subject to
some additional criteria)
v. entitlement to seek employment by the Government,
vi. Entitlement to vote and stand for public office (dual citizens cannot stand for office in
the Parliament unless they have taken all reasonable steps to renounce their foreign
citizenship.

2. Additionally, the following responsibilities are expected of Bahamian citizens:

 obey the law,

 pay taxes,
 defend The Bahamas should the need arise
 register to vote, and vote at all elections and referenda,
 serve on a jury, if called upon,
 swear allegiance to the State

Allegiance Requirement
3. Immigration Registration Policy and Requirement To Swear Allegiance
There should be a test given to every applicant for citizenship. Once the
applicant passes the citizenship test, he/she must take the Oath of Citizenship
and Allegiance to The Bahamas, similar to the nation of Denmark where non-
national residents upon attaining the age of 18 become eligible to take a test to
gain citizenship.
When drafting a new Oath of Allegiance or Citizenship, the following elements should be
included:
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 allegiance to the Constitution, the People or the State (but not the Queen or a person)
 renunciation of allegiance to any foreign country to which the immigrant has had
previous allegiances
 defense of the Constitution against enemies "foreign and domestic"
 promise to serve in the Security Forces when required by law
 promise to perform civilian duties of "national importance" when required by law

Sample Oaths of Allegiance

Suggested Bahamian oath based on the South African model

I, [name], do hereby solemnly declare that I will be loyal to the Commonwealth of The
Bahamas , promote all that will advance it and oppose all that may harm it, uphold and
respect its Constitution and commit myself to the furtherance of the ideals and principles
contained therein.

Suggested Bahamian oath based on the abbreviated American model

I, [name], hereby declare, on oath, that I absolutely and entirely renounce and abjure all
allegiance and fidelity to any foreign state, or sovereign of whom or which I have
heretofore been a subject or citizen; that I will support and defend the Constitution and
laws of the Commonwealth of The Bahamas against all enemies, foreign and domestic;
that I will bear true faith and allegiance to the same; and that I take this obligation freely
without any mental reservation or purpose of evasion; so help me God.

11. GENERAL OUTLINE OF THE OMBUDSMAN

NOTE – We are constantly stating that there is a need for the implementation of alternative
dispute resolution (ADR) mechanisms in our society; however, our approach to enacting such
mechanisms is extremely limited. The Ombudsman institution is an ADR mechanism that
should be considered. The office of the Ombudsman uses the following ADR techniques to
resolve disputes; namely, mediation and conciliation.

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1. ORIGIN – Originated in Sweden in the 1700. The term was first used in 1713 when the
Swedish King, Charles XII appointed a Chancellor of Justice to investigate complaints
levied against Royal Officials and to scrutinize the conduct of persons such as judges and
law administrators who acted in the name of the King. It was officially enshrined in the
Swedish Constitution in 1809.

2. New Zealand was the first Commonwealth country to introduce the office of the
Ombudsman and this took place in 1962.

3. Presently, this institution can be found in countries all over the world.

4. In 1988 the International Bar Association defined this institution as: “An office
provided for the constitution or by an act of the Legislature or Parliament and
headed by an independent, high level public official who is responsible to the
Legislature or Parliament, who receives complaints from aggrieved persons against
government agencies, officials and employees or who acts on his own motion; and
who has the power to investigate, recommend corrective action and issue reports.
Please note that in the Caribbean this definition is used to define the Parliamentary
Ombudsman.

5. The present recourse used by aggrieved persons is by way of Administrative Law-

Judicial Review – there is a cost associated with this approach.

6. THE PURPOSE- To bridge the gap between the bureaucracy and the

citizenry and to protect the citizenry from the abuses of the machinery
of the state.

7. THE FUNCTION – This office is established to investigate the complaints of citizens

who have suffered injustices as a result of maladministration by the public or quasi
government authorities. It focuses on the protection of fundamental rights and
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 individual liberties and it can increase the efficiency of services offered by the
government and quasi-government corporations to the public and ultimately it can help to
deepen democracy. The office helps to resolve the particular issue(s) and where possible,
it may suggest recommendations for improvement of matters of concern.
8. THE MAIN FUNCTION – To investigate decisions or make recommendations of an
administrative nature by a department or authority of government. The focus is on
injustice and maladministration.

9. Countries in the Caribbean where Ombudsman offices are established by the constitution
are: Guyana, Dominica, Jamaica T&T and St. Lucia.

10. HOW A COMPLAINT IS INITIATED- Either by the aggrieved person or body of

persons or where the Ombudsman initiates the complaint.

11. SOME ADVANTAGES- It is inexpensive, it is a recourse for persons who may feel that
they have suffered an injustice, it is flexible in nature, it is informal and has a personal
touch, it is an alternative to the court system, it is impartial, it saves time, it has the
capacity to identify and stimulate reforms in administration; and it is a watch dog for the
state.

12. SOME DISADVANTAGES- The strength and weaknesses of the institution is tied to
the office holder. It lacks financing, it suffers from political interference, if parliament
fails to act on the recommendations tabled by the Ombudsman, the aggrieved persons is
deprived. It is common to have the Ombudsman‟s report shelved. It lacks the power to
question decisions and it is lacks the power to enforce effective sanctions.

13. THE OMBUDSMAN‟S REPORT- He has the discretion to send the report to any
person whose conduct has been the subject of the complaint or who is in some way
connected to the report. If Parliament asks him to make a report he must submit the
report to Parliament. The report is published in Parliament and in the press.

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 14. AREAS WE PROPOSE TO BE INVESTIGATED: Extensive range of matters which
look at judicial proceedings, the police, personal matters, areas of redress which deal with
fundamental rights. There should be restricted areas such as areas which deal with state
activities of national importance or matters which deal with security and defense.

15. TO AID IN ITS EFFECTIVENESS THE FOLLOWING SHOULD BE

CONSIDERED:

 Be specific as to what we want to be investigated.

 The Ombudsman must be independent, fair and impartial.
 Its appointment procedure must be similar to what is being proposed for the DPP
or the Auditor General.
 The Ombudsman should have powers of enforceability.
 The Ombudsman office should have an independent budget. Note if this is not
done then suppose the Ombudsman has to investigate matters concerning the
Ministry of Finance?
 The Ombudsman must have the power to question decisions and issue sanctions.
 The Ombudsman must be able to indicate the action(s) he or she recommends by
way of a remedy or compensation.

RECOMMENDATION

THE PROVISIONAL RECOMMENDATION OF THE FORMER COMMISSION

RECOMMENDED THE APPOINTMENT OF AN OMBUDSMAN WITH
CONSTITUTIONAL TENURE SIMILAR TO THAT OF A SUPREME COURT JUDGE.

12. THE PRIVY COUNCIL

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 Additionally, as it stands now, The Bahamas adheres to the jurisdiction of the Privy
Council as its final Appellate court; this is evident in Article 105 of the Constitution. The
Constitution does empower Parliament to determine which court is retained as the ultimate Court
of Appeal. Due consideration should be given to the fact that the culture and

traditions of the United Kingdom are different from those in The Bahamas
and other Caribbean States. There is a significant divide between the Privy
Council‟s view on capital punishment and that of the average Bahamian.
Consideration should be given to retaining the Privy Council for commercial
and civil matters with a different court identified for final criminal appeals.

13.CONSTITUTIONAL MONARCHY OR A COMMONWEALTH

REPUBLIC

As we approach 40 years of independence, it would seem appropriate that we no

longer need to retain the British Monarch as our head of state. We should gradually move
away from the formal vestiges of our colonial past, which include:

The King or Queen as Head of State;

A Governor General as the Queen‟s representative
The retention of the British system of honours;
The retention of the term “Her Majesty‟s”
The requirement that wigs and gowns be worn in Parliament and the Supreme Court and Court of
Appeal (even the United Kingdom is doing away with this)

Such a departure from this historical heritage need not be harsh or sudden. It can
be used as a teaching tool for our citizens as we truly embrace our sovereignty or what‟s
left of it in a globalised interconnected and interdependent world.

CONCLUSION

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We realize that a number of our submissions require further careful analysis. It was not possible
in the time permitted to exhaustively study all the issues we have raised for your consideration.
We are confident however that we have raised a number of issues of concern that if addressed
will:
1. Reinforce our support for traditional values and cultural norms
2. Eliminate gender discrimination
3. Reduce the potential abuse of political power
4. Reduce the potential for corrupt practices
Reduce instances of political interference with the constitutional
powers of certain public offices
5. Reinforce the importance of the independence of the judiciary
To further strengthen the separation of Powers within our
democracy

We are open to further dialogue and communication on all issues we have raised for your
consideration.

Yours faithfully,

Dr. Myles Munroe

President
Bahamas Faith Ministries International

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