Sean McWeeney, QC, Chairman of the Constitutional Commission

The Constitutional Review Commission, appointed in August 2012 to undertake a comprehensive analysis of the Constitution of The Bahamas, made its recommendations to the Bahamas Government on July 8, 2013.  The 13-member Commission is chaired by our very own Sean McWeeney QC, a Partner and Chairman of the Firm’s Private Clients, Trusts & Estates Practice Group.

According to thebahamasweekly.com report dated August 3, 2013, the prologue for the “Report of the Constitutional Commission into a Review of The Bahamas Constitution”, reads as follows:

Dear Prime Minister,

In August 2012 you appointed this Commission with the following broad mandate: “To conduct a comprehensive review of the Constitution of The Bahamas, and to recommend changes to the Constitution in advance of the 40th anniversary of Independence next year. ” These changes will require a national referendum to be held in due course so that the will of the people can be determined on the matter.

The appointment of this Commission was announced by you in a Communication to Parliament on the 1st August 2012, supplemented by individual letters of appointment subsequently issued by you to the said Commissioners.

In addition to its overarching mandate, you directed the Commission to focus on thematic constitutional issues and specific questions (which are set out in the Communication to Parliament reproduced at Appendix I). These included, among others, the strengthening of the fundamental rights and freedoms of the individual, with a particular focus on citizenship provisions; a review of the provisions relating to the distribution of state power versus civil liberties and individual rights; whether The Bahamas should evolve from a Constitutional monarchy into a republic within the Commonwealth of Nations; matters relating to the Judiciary, including whether the Privy Council should remain the final appellate court; the composition of both Houses of Parliament, and accountability of political representatives.

There was also a specific mandate to consider questions relating to our political system, which were as follows:

• Whether there ought to be constitutionally fixed dates for general elections;
• Whether there ought to be fixed term limits for Prime Ministers and MPs;
• Whether the electorate should be vested with limited rights to recall their MPs;
• Whether the Senate, being an appointed body, should be constituted differently to encapsulate a broader cross-section of national interests;
• Whether eligibility for service in the Senate should be lowered from 30 to 21, the same age that applies to the House of Assembly;
• Whether the unqualified right to free speech enjoyed by legislators needs to be modified so as to give the individual citizen either a limited right of reply to defamatory attacks against him in Parliament, or a right to seek redress against the offending legislator in a court of law; and
• Whether the constitutional power and authority over criminal prosecutions now vested in the Attorney General should be transferred instead to a constitutionally independent Director of Public Prosecution with security of tenure.

You directed us further to build upon the work that was done by the first Constitutional Commission (2002-2007), and to engage in nation-wide public consultation and a “structured dialogue” with the general public on matters of constitutional reform.

The Commissioners have attempted to follow both objectives with the greatest of fidelity. As will be apparent from references throughout this report and from the acknowledgements toward the end, the Commission was able to build on the research, public consultation and scholarship of the first Commission. In particular, the educational booklet “Options for Change”, which was published by the Commission in July 2003 as part of its public education campaign, and the “Preliminary Report & Provisional Recommendations” of that Commission published in 2006, proved to be invaluable resource material. In addition, the Commission had the benefit of continuity in institutional knowledge as three of its Commissioners had also served either as Commissioners or technical staff with the first Commission. Without the benefit of this foundational work, our job would not only have been more difficult, but could scarcely have been completed within the short timeline.

With respect to public consultation, the Commission engaged in a wide array of private and public forms of consultations with eminent persons in civil society, Government officials, special interest groups, the Church, representatives from international agencies and the general public in a series of town meetings held throughout Nassau as well as the major Family Islands. Members also participated in informational radio broadcasts and talk shows, and the Commission established a web-page on the Bahamas Government website to post information and obtain feedback. Indeed, it was primarily the desire to deepen this consultation that prompted the Commission to request of you an extension of the original reporting date from the end of March 2013 to the end of June, 2013.

I am happy to say, after long and mature consideration, we have achieved agreement on most of the recommendations and principles contained in this Report. This is not to say that the Commissioners were unanimous in all of their views; that would be remarkable in a body which in itself was something of a microcosm of society, with a mix of lawyers and laypersons, middle aged and young, men and women, from Nassau and the Family Islands, and persons from opposing political parties, all of whom brought very different viewpoints to the table. The Commission agreed, however, that it would not issue any minority reports, although where members felt strongly enough about a particular issue which diverged from the views of the majority, they would be afforded an opportunity to appropriately memorialize their views in short reservations or dissenting statements, as indeed some members have done (Appendices IV, V).

Accordingly, as Chairman of the Commission, I am pleased, along with my fellow Commissioners, to submit our report for the consideration of the Government.

Yours Sincerely,

SEAN McWEENEY, QC                                                                                                         Chairman, Constitutional Commission

Members of the public who wish to review the work done by the Commission can find further information on www.bahamas.gov.bs.