Introduction
Let me congratulate commissioners for undertaking such an important task at this stage in our beloved nation's development. I personally think that it is a very noble cause for a people to look inward and to assess the path that they wish to tread in the coming decades so as to create a more just, fair and prosperous society.
We must reflect on our past and embrace the challenges and expectations of the future so that we could continue to build a nation of pride, faith and unity; a society where people matter more than things and where human dignity is paramount.
As you are aware, I am fortunate to have been afforded the opportunity to play a role in the 1972 London talks that led to the creation of our nation-state and the culmination of independence. That was a sterling experience for me and the other signatories at the conference and often as I reflect on years past I not only reminisce of the intellectual depth of the delegation, but our collective resolve to fashion a nation on some core principles.
Those were the principles of fairness, equality, industry, solidarity, discipline, loyalty, the right of self-determination and the abiding resolve to chart our own path. We made our work the centerpiece of our political careers.
In my reflection, I also cast my eyes to The Bahamas of the years following our liberation on January 10,1967 and see the magnificent accomplishments that have been made on our national journey.
I remain steadfastly proud of our nation, and yet find cause to pause and think of the wonders that lie ahead if only we restore our nation to the path of prosperity, industry, safety and common decency and respect for humankind.
I, therefore, trust that this reform process began the needed mature dialogue in The Bahamas, throughout every island, among every Bahamian and in every community, of what we can achieve together, working alongside each other, to chart a better and more progressive course for our nation in her next 40 years and beyond.
The process
There is no denying the fact that The Bahamas of 2013 is fundamentally different than The Bahamas of 1972. Our march to independence was fought through the 1972 general election, which gave to the Progressive Liberal Party the mandate to proceed to independence from imperial Great Britain.
This present exercise is different. This process is not intended to be dominated by partisan politics. At its heart must be the further education of the Bahamian people and their leaders; it must include the creation or stimulation of a national conversation through informed discussion amongst the citizenry and key stakeholders. I salute this commission for its effort in striking the correct balance thus far.
I also wish to say, however, that the process demands careful and thoughtful deliberations. It must not be seen to be rushed or to be hijacked by special interests. It must be rooted in the law and the people's welfare. If this is followed, then at the end of it all we will have an amended Constitution that reflects the new Bahamas and is worthy of the Bahamian people.
I urge this commission to do its best and to work toward a more perfect, easy-to-read, modern, yet progressive, Constitution.
Thoughts on constitutional change
There is no doubt that our Constitution has steered us well over these past 40 years. We have had no serious constitutional challenges and, in many respects, our Constitution has guided our democracy to greater stability.
We have had four quiet and peaceful changes of government (1992, 2002, 2007 and 2012) and although the electorate is fairly evenly divided between the two major political parties; on given issues there is a keen sense that the people of The Bahamas can put aside their partisanship for the national good. This is a defining feature of our growing maturity as a people.
There are many examples that have shown over the past 40 years that the process for constitutional change is ripe at this time. Forty is a very significant number. Throughout the biblical narrative there are lessons to be learnt. Forty is a period of transformation, a time of fullness, a time of renewal, a time of beginning. Inspired by this knowledge, I am happy to share my thoughts on what I think should be reflected in our Constitution:
1. The preamble must continue to speak and examine our enduring values. These values remain industry, loyalty, an abiding respect for traditional values and the rule of law. I would now only strongly advise that there be recognition of our growing multiculturalism and different spiritual beliefs in the society.
2. I firmly believe that no position in The Bahamas should be beyond the reach of a Bahamian. Therefore, it follows that the Office of 'Head of State' should be held by a Bahamian. We should create a Republic (The Republic of The Bahamas) with the duties presently prescribed for the governor general to be carried out by a president, in addition to some added responsibilities. The president should be elected by a parliamentary vote supported by no less than two-thirds of all the members. The office should have specified constitutional powers,
which can be a vital check on abuses in the system. A vice president should also be elected in the same manner. 3. I consider that we should abolish the existence of the Senate and move towards a unitary parliamentary democracy. The Senate has long ceased to perform in the intended manner. Some present responsibilities of the Senate could be supplemented through the Office of the President.
4. On the issue of citizenship, I am a supporter of a more modern approach to citizenship, one that has its connection to the new paradigm of national development. In this regard, the Constitution must remove any and all ambiguities that exist relative to the rights to citizenship. We should expand the existing provisions and remove the prohibition which prevents Bahamian mothers from conferring citizenship to their children. And, I firmly believe, that we should allow for those persons who were born in The Bahamas and have continuously resided in The Bahamas for 18 years or more, and who have a close connection and affinity to The Bahamas, to become citizens of The Bahamas upon their making application for citizenship. The Constitution should remove all discretions that presently exist in the law as to their right to become Bahamian citizens. However, if there be any strong legal requirement for codified exceptions in the Constitution, they should be limited to matters of national security or public policy. I further advocate that the foreign spouse of a Bahamian woman, who has demonstrated close affinity to The Bahamas, should be guaranteed the right to reside and work in the country subject to strict guidelines.
5. In respect of the fundamental rights provisions, I also hold the view that there should be some recognition in our Constitution to prevent discrimination on the grounds of sexual preference or orientation. This will be in line with the Universal Declaration of Human Rights.
6. Any provision in the Constitution which permits the conduct of a lottery or the carrying on of gambling which impose disabilities or restrictions on the citizens of The Bahamas must be eliminated. We can no longer tolerate the existing practice.
7. I believe that there should be a provision that expressly prohibits the right to bail in capital cases or serious criminal matters and similarly the issue of the death penalty should be addressed and settled. I believe that the death penalty should be abolished.
8. I support the creation of an 'Ombudsman', with specific jurisdiction to safeguard the community in its dealings with the government agencies by: Correcting administrative deficiencies through independent review of complaints about government administrative action; fostering good public administration that is accountable, lawful, fair, transparent and responsive; assisting people to resolve complaints about government administrative action; developing policies and principles for accountability; and, reviewing statutory compliance by law enforcement and other such agencies with like powers.
9. It is my view that time has taught us that many elected politicians do not recognize and respect the age-old conventions that are not written in the Constitution. We need to find a means to incorporate some of these conventions, certainly the most important of them in our Constitution or in an addendum to the Constitution. I encourage the following safeguards: There should be a mechanism to allow for a recall of members of Parliament based on a petition presented to the speaker of the House of Assembly of at least 50 percent plus one of the electors in the constituency; there should be a requirement for all MPs to devote the necessary time in order to give full attention to the people's needs and concerns with the assistance of generalist staff and with functional committees of the House; and, there should be a limit imposed on the amount of money spent in any constituency in any general election or by-election, such sum not to exceed a percentage fixed to the total numbers of electors. In fixing the amount, consideration should also be given to the geographical features of the constituency.
10. There should be an independent boundaries and electoral commission whose composition is set out in the Constitution. Such a commission should be comprised a judge of the Supreme Court, the ombudsman, the clerk of the House; the parliamentary commissioner, one non-MP appointed by the prime minister and one non-MP appointed by the leader of the opposition. Guidelines for the conduct of the commission must be clearly defined.
11. Given the financial abuse that the nation has endured in recent times with the large size of Cabinets, the Constitution should also set a maximum number of ministers. I propose a Cabinet no larger than 30 percent of the members of the House. This could result in enhancing the role and value of the backbencher in our parliamentary system and thereby serve as a further check, in addition to the opposition, to the abuse of power by the executive.
12. There should be a provision that provides for the appointment of a deputy prime minister based on the same principle as that which applies to the appointment of a prime minister.
13. I also support radical reform of the public service and the elimination of the Public Service Commission and the Public Service Board of Appeal. Similar progressive changes should occur with the Police Service Commission and other commissions. To bring the public services into the 21st century, serious consideration must be given to the elimination of the bureaucracy around the hiring, discipline and termination of public officers.
14. I have the highest regard and great confidence in the ever-growing sophistication of Bahamian professionals. I think that this is most notably demonstrated in the many talented Bahamian jurists who have served with distinction and intellectual honor. I, therefore, support the full Bahamianization of the judiciary. I, too, support the judicature being comprised of the Magistrates Court, the High Court (replacing the Supreme Court) and the Supreme Court (embodying the current functions and jurisdiction of the Appeal Court, as the final appellate court for The Bahamas). The Supreme Court will thereby replace the Privy Council for both criminal and civil cases. In order to dispel the anomaly that currently exists in that the chief justice, who is the head of the judiciary, can be overturned by the current Court of Appeal or the Privy Council. In my 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'. The chief justice will, therefore, be the head of the Supreme Court, our final court. I also support the increase in the retirement ages of justices of both courts - say at 75 years (subject to good health and mental capacity). When consideration is given to the judicature, we should conclude that the judicature should not be any different from any other august institutions of state. If we are building truly Bahamian institutions, we need to overcome the shallow insecurities and reservations that have prevented our judiciary from being Bahamianized.After all, real independence entails building Bahamian institutions of state that are populated by highly trained and qualified Bahamians.
Conclusion
Commissioners, you have undertaken a vital and critical work. I implore you to summons your intellectual power and national pride as you carry out your lofty and solemn task. What you do should set the tone for our future national development. A collective resolve must be to create a better, just and fairer Bahamian nation that protects the fundamentals of our Constitution and defend the people's best interest.
I pray that you serve The Bahamas with distinction and that the all-wise God bless and guide you.
o George A. Smith is a former member of Parliament and Cabinet minister of The Bahamas.
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