"The constitution needs allegiance and loyalty and renewal and understanding with each generation, or else it's not going to last." - U.S. Supreme Court Justice Anthony Kennedy .
During the last four weeks in this independence series, we traced the historical developments leading to the drafting of The Bahamas Constitution at the Constitutional Conference in London in 1972. We also paraphrased the essential constitutional articles which have served us these past 39 years. In our last installment of this series, we offered recommendations regarding changes that should be made regarding chapters I to IV of the constitution.
In the final part of this series, this week we would like to Consider This... what are some of the important changes that should be considered in amending our constitution in the remaining chapters V through X?
Chapter V - Parliament
The constitution does not presently provide for elected members to be recalled if they do not measure up to certain criteria. They can only be 'fired' every five years by the voters, barring a few exceptional circumstances. A compelling argument can be made for elected members to be recalled if they fail to satisfy certain qualifications during their term in office. We should therefore consider including in any changes to our constitution those circumstances under which a member of Parliament could be recalled if they fall short of the standards that they are expected to maintain in office.
With respect to the Senate, we need to first of all determine if it is still relevant in today's Bahamas. If we decide to retain the Senate, we should also determine whether it should remain an appointed body or whether the constitution should be amended so that senators are elected as in the case of MPs.
If we decide that senators should be appointed, we should determine the basis of their selection -- whether we should retain the present formula or whether Senate appointments should be made on the basis of the proportional results of the popular vote of MPs. This is important because, however far-fetched it might presently appear, there could be a situation where a single party could win all the seats in the House of Assembly, even with a small plurality of the vote, without any representation in Parliament by a single member in opposition. In such a case, if the constitution provided for Senate appointments proportionally based on the actual vote, the allocation of the senators would be configured to reflect the popular vote, ensuring that the opposition is represented in the Senate. In such circumstances, the constitution should provide for the leader of the official opposition to be appointed to the Senate.
A persuasive argument can be made for a specific number of senators to be appointed by the head of state and that such appointments should be representative of civil society as opposed to the body politic ensuring that opinions representing a wider cross section than strictly those of politicians have a place to be heard.
A constitutional provision should also ensure that an independent Boundaries Commission is appointed to ensure that this important exercise is removed from the purview of elected MPs and from the prime minister's ability to redraw constituency boundaries.
While there is an urgent need to enact legislation that governs campaign financing, we do not believe that such restrictions should be incorporated into the constitution.
Chapter VI - the executive
The constitution confers enormous powers of appointment to the prime minister. In reviewing constitutional changes, some of the powers of appointment that are vested in the prime minister should be examined and in some cases transferred to the head of state.
Chapter VII - the judicature
If we are going to direct our destiny, we should seriously revisit the judiciary which should be Bahamianized. We suggest that the judiciary should be comprised of the magistracy, the High Court (which will replace the Supreme Court), the Court of Appeal, which should retain its current functions and jurisdiction, and the highest court in the land that should be renamed the Supreme Court which would replace the Privy Council.
In order to dispel the anomaly that currently exists in the judiciary, inasmuch as decisions that are rendered by the Chief Justice, who is also the head of the judiciary, can be overturned by the Court of Appeal or the Privy Council, in our opinion, the chief justice of the Supreme Court (that is, the reconstituted highest court) should indeed be "the chief among all justices, at the pinnacle of the judiciary".
Additionally, the constitution should provide that all justices in our judiciary should be Bahamian nationals. Lest anyone suggest that this arrangement smacks of xenophobia, we ask Bahamians to consider this...when was the last time that a non-Bahamian sat in Parliament, at the cabinet table or in Government House? Why should our judiciary be any different from those other august institutions of governance? If we are building truly Bahamian institutions, we need to overcome the insecurities and reservations that our judiciary should be Bahamianized. After all, real independence entails building Bahamian institutions of governance that are populated by highly trained and qualified Bahamians.
There is also an urgent need to review the procedures surrounding the appointment of judges so that their selection is less political. These enhancements in our judiciary would require greater and broader participation in the selection of judges which should be removed from the partisan political machinery that presently attends such appointments. This will strengthen the public's confidence in the selection of justices and minimize the appearance and actual control and possible manipulation of the judiciary by the political directorate.
We should also revisit the retirement age of our judges. Many seasoned Justices are constitutionally required to retire too early, resulting in a loss of their extensive legal expertise, wisdom and acumen.
Chapter IX - public finance
In light of the propensity of governments to run up excessive fiscal deficits and the national debt, we should consider whether constitutional limits should be placed on both the size of the fiscal budget deficit and the national debt by the government. As individuals in civil society are expected to exercise fiscal prudence, so should our government. This is an area which will evoke considerable debate.
Conclusion
To his enormous credit, the prime minister has already announced a Constitutional Review Commission, chaired by Sean McWeeney, a former attorney general and a consummate legal scholar, to assess changes that should be made to the constitution that has guided our nation for the past four decades. Through the work of this commission, Bahamians will have a unique opportunity to build upon the foundation that was laid by the fathers of the nation at the Constitutional Conference in London forty years ago. More significantly, we will all have an opportunity to inform the development of a revised constitution which will better represent the soul and aspirations of a people, and strengthen those institutions that will that will provide for good governance for present and future generations of Bahamians.
o Philip C. Galanis is the managing partner of HLB Galanis & Co., Chartered Accountants, Forensic & Litigation Support Services. He served 15 years in Parliament. Please send your comments to pgalanis@gmail.com
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