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Joining the Bahamian Discussion on Human Rights Law.scribd

Joining the Bahamian Discussion on Human Rights Law.scribd

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Published by Lex Justis

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Published by: Lex Justis on Sep 10, 2010
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 Joining The Bahamian Discussion on Human Rights Law 
Page 1
Melissa K. Sweeting-PercentieCopyright 2010
The purpose of this article is to lend clarity to the Bahamian Church as to what is meantby the term ´human rightsµ when we think of the transcontinental debate going on mostnotably in the European courts and made universally popular by such groups as AmnestyInternational. What determines the issues the Church will address at any given time?The answer is relevance.In the 1800·s in Britain and parts of the United States, the issue was abolitionism. Onecentury later in the west it was the issue of the suffragettes. When World War IIloomed, it was fascism and the subsequent genocide committed by the Nazis. In themodern western church stateside, we hear of debates on abortion, absence of prayer inthe schools, divorce, opposition to big government, opposition to stem cell research,opposition to liberal sex education in the schools, protest at the removal of publicsymbols of Christianity such as the Ten Commandments and nativity scenes. In TheBahamas, recent issues have been on the legalization of gambling and on the legaldefinition of rape within marriage.The purpose of this article is to explain how tenuous is the debate on human rights froma ´morality standpointµ and how the historic position of nationhood is valuable tooppose certain issues while supporting other causes. This requires a deepened knowledge of how the law is operating most especially in the European Union and howthis has affected lawmaking in the United Kingdom, from whom we have inherited amodel of government and the courts, a model which is presently under siege or at thevery least a model which is being overturned and replaced with something new.Some years ago, the Hon. Perry G. Christie made the suggestion while he was PrimeMinister that Bahamian students studying law should go into ´Public LawHis ideamight have been the great need for judicial review of government decisions and the need for stronger voices to protect the sacred tenet of our system: the separation of powers.At that time I had begun my legal studies and was burrowing into the public and administrative law textbook, also known as ´Constitutional Law.µ What I found thereleads to my suggestion: namely, that every Bahamian church picks its brightest scholarsand immerses them in the study of Constitutional Law. It is the richness of thelandscape of this ancient system we have inherited which I believe must emphatically bepreserved! I cannot emphasize enough the urgency.For nearly 40 years, the United Kingdom has been legislating under the shadow of integration with European Law by signing on to the European Communities Act 1972.For nearly 12 years, the United Kingdom has been constrained to rule on human rightsissues directly under the authority of the Human Rights Act 1998.And, it is the decided opinion of some of the most brilliant legal minds, that some of thenuggets of antiquity are at risk of being washed away. Ironically, perhaps, these voicesspan both the conservative and the liberal landscape in that country.
 Joining The Bahamian Discussion on Human Rights Law 
Page 2
Meanwhile, many of the younger generation applaud these changes as a welcomedeliverance from the traditional prejudices and oppressions against women, minoritiesand obscure religious or ethnic groups. The European Union presents us with the mostauthoritative model of a New World Order that we have seen or heard about since TheRoman Empire. And while it was created, supposedly, to bring together all the rawmaterials of war after World War II, to avoid another great war of bloodshed, peril and destruction when the weapons of war had become so formidable, there are somecommentators who have expressed need for the legislators in the Commonwealth of Nations to give pause before ancient rights, hard-fought rights and complexunderstandings are labeled with one brush stroke, that colour being One World Order.It is my hope that I have the patience, discipline and care required to compress a mass of material to you in a format that is helpful, readable, fair and most of all gives praise to ourLord who has brought us thus far, who has brought us a mighty long way and whosename must be continually raised up on the earth.WHERE DO WE BEGIN?For the Bahamian Church, I suggest we begin with the most simplistic approach: ourunderstanding of what it means to have a constitution and how this is different in theUK. We also need to know that the law happens in more than one place in theWestminster system that we inherited from Britain, a country whose constitutionalposition is very different than our own but whose court structure we have inherited inwhat we call the ´common law.µFirst of all, the United Kingdom is considered by many Bahamians as the Motherland.´Queen Victoria freed the slaves,µ and the Creole ship had to surrender their passengersthat were considered by the Americans to be mere chattel as against British reform forabolition. But the United Kingdom does not have a written Constitution. Nor do Israelor New Zealand. Being a country with an unwritten constitution means that issues of constitutional merit (relationship of the individual to the state, role of institutions,separation of powers, etc.) are to be found intermittently where an Act of Parliamentdefines them.How important are Acts of Parliament (also called statutes/statutory law)? Acts of Parliament in the British system take priority over court decisions/judge-madedecisions/common law decisions. So, where the court (in an upper court, the House oLords) made a decision to award compensation for property loss in the case
rmah Oil v.Lord Advocate (1965)
the British Parliament wheeled around and swiftly moved to passthe War Damage Act 1965
to break that pattern (of getting $$ out of government forwar damage) from happening. Overnight, the decision of the judges that had created onelaw (that government must compensate such and such a company for damage whichoccurred in the war), now changed into another law (on the same exact issue) by the
[1965] AC 75.
See Barnett, 2004, pp 114-116.
 Joining The Bahamian Discussion on Human Rights Law 
Page 3
legislators when they passed an Act of Parliament. The British Parliament would nothave passed the War Damage Act 1965 unless it was formulated in the minds of policy-makers who had ultimate control over the assets of the country. That policy-creatinggroup is known as the executive, also known as the Cabinet. Here, I am giving you thefirst treatment of the separation of powers: executive, judicial and legislative. It is at thecrux of the constitutional debate when we are coming from a traditional, historicalperspective of Westminster law. It is NOT at the crux of the European debate. In fact,experts are still looking long and hard to find a separation of powers structure built intothe European model. Perhaps they cannot find it because it does not resemble what weunderstand as the separation of powers.So, we now look at what it means to have Acts of Parliament that contain constitutionalmatters. There is no hard and fast rule as to what makes an act constitutional but if itclearly defines the role of the individual to the state, or states the role of institutions of the state, or the relationship of those institutions to one another, it is a constitutionalstatute. Here is a leading speech from the case
rn v S
nderland City Co
ncil (2002)
 where Laws LJ illumines the issue of constitutional statutes which define the United Kingdom:-We should recognize a hierarchy of Acts of Parliament: as it were ¶ordinary·statutes and ¶constitutional· statutes. The two categories must be distinguished on a principled basis. In my opinion a constitutional statute is one which (a)conditions the legal relationship between citizen and state in some general,overarching manner, or (b) enlarges or diminishes the scope of which we would now regard as fundamental constitutional rights. (a) and (b) are of necessityclosely relatedf: it is difficult to think of an instance of (a) that is not also aninstance of (b). The special status of constitutional statutes follows the specialstatus of constitutional rights. Examples are the Magna Carta, the Bill of Rights1689, the Act of Union, the Reform Acts which distributed and enlarged thefranchise [voting rights], the Human Rights Act 1998, the Scotland Act 1998 and the Government of Wales Act 1998. The European Communities Act clearlybelongs to this family«So by now we can see that the United Kingdom has a carefully-crafted system in placewhich deals with constitutional matters and the separation of powers. Please look at therange of dates, noting that the above-listed statutes were created (from 1215 to 1998) and you get a clearer picture of the vibrancy of the constitution in the United Kingdom, thatit is by no means static, always being changed based on the needs of the people. Notealso the following facts
for each statute:Magna Carta 1215: established a formal settlement between the
and the baronsBill of Rights 1689: marked a decided change in the balance of power, tipping distinctlyfrom the Crown to the
[2002] 1 CMLR 50.
See Barnett, 2004, pp 19-25.

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