‘A new proclamation of emergency could trigger legal action’

Former Minister of State for Legal Affairs Damian Gomez, QC, predicted yesterday that the government would be the subject of litigation if a new proclamation of emergency is issued by the governor general when the current proclamation expires at the end of December.

“I think they’ll start to see litigation at that point,” Gomez told The Nassau Guardian.

When asked if he would join such litigation, he replied, “Yes. I’m already assisting Mr. [Wayne] Munroe and his justice league who is monitoring the situation with the view of issuing a writ.”

Gomez added, “My view of it is, firstly, you should only use states of emergency sparingly. Doing it repeatedly undermines the perception of the country as a country governed by laws and freedoms.

“When you add to that that the Cabinet loses its authority because the authority is vested in one man, the competent authority, who is the prime minister, that actually exacerbates the problem. Probably, if more persons were looking at the problem with responsibility for whatever they did, the mistakes which have been made would have been avoided.”

A state of emergency was declared by Governor General C.A. Smith in March as the first cases of COVID-19 were confirmed in The Bahamas. It was renewed by Parliament until the end of June when, due to a procedural error, a new state of emergency was declared.

The issuance of a new proclamation gives the government a six-month period during which they can extend the state of emergency. That period is set to expire on December 29.

Munroe has insisted that the second proclamation was unconstitutional.

In June, he told The Guardian, “When you look at Article 29, your rights are affected when we’re at war and that’s an actual war and not this supposed war on COVID or when you have a proclamation of an emergency. Then, you go over to 29(5) and a proclamation for any event can only be extended a maximum of six months.

“So, when the governor general makes a declaration that has a life of 14 days and within that 14 days Parliament extends it and Parliament can do a cumulative extension of up to six months per state of emergency, we say you can have one state of emergency per event.”

Attorney General Carl Bethel has dismissed that claim. 

Last month, he said the governor general would be able to make another proclamation “if that was the only way he could ensure public health”.

On Wednesday night, Prime Minister Dr. Hubert Minnis gave notice of a resolution to extend the state of emergency from November 30 to December 28. 

Gomez said an extension is “not necessary”.

“They can do public health legislation similar to what’s in England and Canada,” he said.

“They don’t need a state of emergency for that.” 

The government is finalizing a Medical Emergency Bill which allows for limited control measures during future pandemics.

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