Constitutional structure and position of IHL in domestic law
The Commonwealth of the Bahamas is a sovereign democratic state. It became an independent state within the Commonwealth on 10 July 1973. The Bahamas are a constitutional monarchy and a parliamentary democracy.
The executive branch consists of the Queen of England (represented by a Governor-General) as the Chief of State and of a cabinet headed by a Prime Minister. The Westminster-style bicameral Parliament consists of the Queen of England (represented by the Governor-General), an appointed Senate and an elected House of Assembly. The higher levels of jurisdiction are the Supreme Court for The Bahamas, the Court of Appeal for The Bahamas and Her Majesty in Council (Privy Council).
Section 2 of the Constitution provides that the Constitution is the supreme law of The Bahamas and that if any law is inconsistent with it, the Constitution shall prevail to the extent of the inconsistency. The Constitution contains no rules on the ratification of treaties. Legal sources in the Bahamas include acts adopted by Parliament, UK laws (that is: laws that were in effect immediately before 10 July 1973 and laws made before that day and coming into operation on or after that day that have not been repealed, but which may have been amended by the Governor-General before 10 July 1974) and English common law.
The Bahamas succeeded to the four Geneva Conventions of 1949 on 11 July 1975 and acceded to the two Additional Protocols of 1977 on 10 April 1980.
Full text of the Constitution:
Chapter III: Protection of Fundamental Rights and Freedoms of the Individual
Sect. 17 - Protection from inhuman treatment.
(1) No person shall be subjected to torture or to inhuman or degrading treatment or punishment.
(2) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this Article to the extent that the law in question authorizes the infliction of any description of punishment that was lawful in the Bahamas Islands immediately before 10th July 1973.
Sect. 20 - Provisions to secure protection of law.
(1) If any person is charged with a criminal offence, then unless the charge is withdrawn, the case shall be afforded a fair hearing within a reasonable time by an independent and impartial court established by law.
(2) Every person who is charged with a criminal offence-
(a) shall be presumed to be innocent until he is proved or has pleaded guilty;
(b) shall be informed as soon as reasonably practicable, in a language that he understands and in detail, of the nature of the offence charged;
(c) shall be given adequate time and facilities for the preparation of his defence;
(d) shall be permitted to defend himself before the court in person or, at his own expense, by a legal representative of his own choice or by a legal representative at the public expense where so provided by or under a law in force in The Bahamas;
(e) shall be afforded facilities to examine in person or by his legal representative the witnesses called by the prosecution before the court, ad to obtain the attendance and carry out the examination of witnesses to testify on hi behalf before the court on the same condition as those applying to witnesses called by the prosecution;
(f) shall be permitted to have without payment the assistance of an interpreter if he cannot understand the language used at the trial of the charge; and
(g) shall, when charged on information in the Supreme Court, have the right to trial by jury;
and except with his own consent the trial shall not take place in his absence unless he so conduct himself in the court as to render the continuance of the proceedings in his presence impracticable and the court has ordered him to be removed and the trial to proceed in his absence.
(3) When a person is tried for any criminal offence, the accused person or any person authorized by him in that behalf shall, if he so requires and subject to payment of such reasonable fee as may be prescribed by law, be given within a reasonable time after judgment a copy for the use of the accused person of any record of the proceedings made by or on behalf of the court.
(4) No person shall be held to be guilty of a criminal offence on account of any act or omission that did not, at the time it took place, constitute such an offence that is severer in degree or description than the maximum penalty that might have been imposed for that offence at the time when it was committed.
(5) No person who shows that he has been tried by a competent court for a criminal offence and either convicted or acquitted shall again be tried for that offence or for any other criminal offence of which he could have been convicted at the trial for that offence, save upon the order of a superior court in the course of appeal or review proceedings relating to the conviction or acquittal.
(6) No person shall be tried for a criminal offence if he shows that he has been pardoned for that offence.
(7) No person who is tried for a criminal offence shall be compelled to give evidence at the trial.
(8) Any court or other adjudicating authority prescribed by law for the determination of the existence or extent of any civil right of obligation shall be established by law and shall be independent and impartial; and where proceedings for such a determination are institute by any person before such a court or other adjudicating authority, the case shall be given a fair hearing within a reasonable time.
(9) All proceeding instituted in any court for the determination of the existence or extent of any civil right or obligation, including the announcement of the decision of the court, shall be held in public,
(10) Nothing in paragraph (9) of this Article shall prevent the court from excluding from the proceedings persons other than the parties thereto and their legal representatives to such extent as the court-
(a) may be empowered by law so to do and may consider necessary or expedient in circumstances where publicity would prejudice the interests of justice, or in interlocutory proceedings or in the interests of public morality, the welfare of persons under the age of eighteen years of the protection of the private live of persons concerned in the proceedings;
(b) may be empowered or required by law to do so in the interests of defence, public safety of public order; or
(c) may be empowered or required to do so by rules of court and practice existing immediately before 10th July 1973 of by any law made subsequently to the extent that it makes provisions substantially to the same effect as provision contained in any such rules.
(11) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of-
(a) sub-paragraph (2)(a) of this Article to the extent that the law in question imposes upon any person charged with a criminal offence the burden of proving particular facts;
(b) sub-paragraph (2)(e) of this Article to the extent that the law in question imposes conditions that must be satisfied if witnesses called to testify on behalf of an accused person are to be paid their expenses out of public funds;
(c) paragraph (5) of this Article to the extent that the law in question authorizes a court to try a member of a disciplined force for a criminal offence notwithstanding any trial and conviction or acquittal of that member under the disciplinary law of that force, so, however, that any court so trying such a member and convicting him shall in sentencing him to any punishment take into account any punishment awarded him under that disciplinary law.
Sect. 28 - Enforcement of fundamental rights.
(1) If any person alleges that any of the provisions of Articles 16 to 27 (inclusive) of this Constitution has been, is being of is likely to be contravened in relation to him then, without prejudice to any other action with respect to the same matter which is lawfully available, that person may apply to the Supreme Court for redress.
(2) The Supreme Court shall have original jurisdiction-
(a) to hear and determine any application made by any person in pursuance of paragraph (1) of this Article; and
(b) to determine any question arising in the case of any parson which is referred to it in pursuance of paragraph (3) of this Article,
- and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement of any of the provisions of the said Articles 16 to 27 (inclusive) to the protection of which the person concerned is entitled:
Provided that the Supreme Court shall not exercise its power under this paragraph if it is satisfied that adequate means of redress are or have been available to the person concerned under any other law.
(3) If, in any proceedings in any court established for The Bahamas other than the Supreme Court or the Court of Appeal, any question arises as to the contravention of any of the provisions of the said Articles 16 to 27 (inclusive), the court in which the question to the Supreme Court.
(4) No law shall make provision with respect to rights of appeal from any determination of the Supreme Court in pursuance of this Article that is less favorable to any party thereto than the rights of appeal from determinations of the Supreme Court that are accorded generally to parties to civil proceedings in that Court sitting as a court or original jurisdiction.
(5) Parliament may make laws to confer upon the Supreme Court such additional or supplementary powers as may appear to be necessary or desirable for enabling the Court more effectively to exercise the jurisdiction conferred upon it by paragraph (2) of this Article and may make provision with respect to the practice and procedure of the Court while exercising that jurisdiction.
Sect. 29 - Provisions for time of war or emergency.
(1) This Article applies to any period when-
(a) The Bahamas is at war; or
(b) there is in force a proclamation (in this section referred to as a "proclamation of emergency") made by the Governor-General and published in the Gazette declaring that a state of public emergency exists for the purposes of this section.
(2) Nothing contained in or done under that authority of any law shall be held to be inconsistent with or in contravention of Article 19, any provision of Article 20 other than paragraph (4) thereof, or any provision of Article 21 to 26 (inclusive) of this Constitution to the extent that the law in Question makes in relation to any period to which this Article applies provision, or authorizes the doing during any such period of anything, which is reasonably justifiable in the circumstances of any situation or existing during that period for the purpose of dealing with that situation.
(3) Where any proclamation of emergency has been made, copies thereof shall as soon as practicable be laid before both Houses of Parliament, and if for any cause those Houses are not due to meet within five days the Governor-General shall, by proclamation published in the Gazette, summon them to meet within five days and they shall accordingly meet and sit upon the day appointed by the proclamation and shall continue to sit and act as if they had stood adjourned or prorogued to that day:
provided that if the proclamation of emergency is made during the period between a dissolution of Parliament and the next ensuing general election-
(a) the Houses to be summoned as aforesaid shall be the Houses referred to in Article 66 of this Constitution unless the Governor-General is satisfied that it will be practicable to hold that election within seven days of the making of the proclamation of emergency; and
(b) if the Governor-General is so satisfied, he shall (instead of summoning the House so referred to meet within five days of the making of the proclamation ) summon the Houses of the new Parliament to meet as soon as practicable after the holding of that election.
(4) A proclamation of emergency shall, unless it is sooner revoked by the Governor-General, cease to be in force at the expiration of a period of fourteen days beginning on the date on which it was made or such longer period as may be provided under paragraph (5) of this Article, but without prejudice to the making of another proclamation of emergency at or before the end of that period.
(5) If at any time while a proclamation of emergency is in force (including any time while it is in force by virtue of the provisions of this paragraph) a resolution is passed by each House of Parliament approving its continuance in force for a further period, not exceeding six months, beginning on the date on which it would otherwise expire, the proclamation shall, if not sooner revoked, continue in force for that further period.
Sect. 30 - Saving of existing law.
(1) Subject to paragraph (3) of this Article, nothing contained in or done under the authority of any written law shall be held to be inconsistent with or in contravention of any provision of Articles 16 to 27 (inclusive) of this Constitution to the extent that the law in question-
(a) is a law (in this Article referred to as "an existing law") that was enacted or made before 10th July 1973 and has continued to be part of the law of The Bahamas at all times since that day;
(b) repeals and re-enacts an existing law without alteration; or
(c) alters an existing law and does not thereby render that law inconsistent with any provision of the said Articles 16 to 27 (inclusive) in a manner in which, or to an extent to which, it was not previously so inconsistent.
(2) In sub-paragraph (1)(c) of this Article the reference to altering an existing law includes references to repealing it and re-enacting it with modifications or making different provisions in lieu thereof, and to modifying it; and in paragraph 81) of this Article "written law" includes any instrument having the force of law and in this paragraph and the said paragraph (1) references to the repeal and re-enactment of an existing law shall be construed accordingly.
(3) This Article does not apply to any regulation or other instrument having legislative effect made, or to any executive act done, after 9th July 1973 under the authority of any such law as is mentioned in paragraph (1) of this Article.
Sect. 31 - Interpretation.
(1) In this Chapter-
"contravention", in relation to any requirement, includes a failure to comply with that requirement; and cognate expressions shall be construed accordingly;
"court" means any court of law having jurisdiction in The Bahamas other than a court established by a disciplinary law, and includes the Judicial Committee of Her Majesty's Privy Council or any court substituted therefore by any law made under Article 105 of this Constitution and-
(a) In Article 16, Article 18, Article 19, paragraphs (2), (3), (5), (8), (9) and (10) of Article 26 and paragraph (3) of Article 28 of this Constitution includes, in relation to an offence against a disciplinary law, a court established by such a law; and
(b) In Article 18, Article 19 and paragraph (3) of Article 28 of this Constitution includes, in relation to an offence against a disciplinary law, any person or authority empowered to exercise jurisdiction in respect of that offence;
"disciplinary law" means a law regulating the discipline of any disciplined force;
"disciplined force" means-
(a) a naval, military or air force;
(b) the Police Service of The Bahamas; or
(c) the Prison Service of The Bahamas; or
(d) any other force or service specified by Act of Parliament to be a disciplined force for the purposes of this Chapter;
"legal representative" means a person entitled to practice in The Bahamas as Counsel and Attorney of the Supreme Court;
"member" in relation to a disciplined force includes any person who, under the law regulating the discipline of that force, is subject to that discipline.
(2) Any reference in Articles 16, 19, 25 and 27 of this Constitution to a criminal offence shall be construed as including an offence against disciplinary law, and any such reference in paragraphs (2) to (7) (inclusive) of Article 20 of this Constitution shall, in relation to proceedings before a court constituted by or under disciplinary law, be construed in the same manner.
(3) In relation to any person who is a member of a disciplined force raise under a law of any country other than The Bahamas and lawfully present in The Bahamas, nothing contained in or done under the authority of the disciplinary law of that force shall be held to be inconsistent, with or in contravention of any of the provisions of this Chapter.