EDITOR, The Tribune.
Let us hear from our parliamentarians. Will they not protect our natural heritage, and use their authority to ban oil drilling or end the activity of BPC by some other legislative means? Perhaps the members of the House of Assembly and the Senate think that Parliament has no such authority. Or, worse, perhaps they would like the Bahamian people to believe the same so that the role Parliament can and should play in this drama remains opaque.
Let us resist the opaque. Policy decisions of the executive branch of government arguably tie the hands of the executive branch. But those same decisions do not constrain the legislative branch of government in the same way or to the same degree. Parliament’s sovereignty in all matters is only limited by the requirement that all legislation must be consistent with the Constitution. So, if the Prime Minister and the Attorney General really want to level with the Bahamian people about whether the Government has the authority to stop the impending travesty of drilling in our precious waters, they would stop playing games and explain to the people why they fear legislation to ban oil drilling might be unconstitutional. They should then let our primary democratic institution decide on policy in this matter of such incredible national importance.
Let us drill a bit deeper (no pun intended). We understand that the principle of stability and continuity of governance requires the governing administration to honour administrative decisions by former or current government officials. Good governance needs the decisions of the executive to be respected by those elected and non-elected public officials charged with administering such agreements, decisions, and government policies. This norm is consistent with liberal-theory notions that protect individuals against arbitrary administrative decision-making by public officials. Individuals can rely on administrative and contract laws in support of this principle. And when Attorney General Bethel alludes to the hands of the government being tied, in relation to the exploratory oil-drilling licenses that have already been approved and relied upon, he is referring to these sort of legal restraints. The problem is that we know successive administrations have bypassed these restraints when it has suited them, and have taken their chances in court in defending their actions. Furthermore, when breaches of these continuity norms have occurred, other good-governance principles have been used in defense – such as an elected administration, acting in the public interest and in the interest of the policies that got it elected, has the duty to correct the policy mistakes of a former administration.
Let us be clear. The legal restraints that support good governance continuity and stability norms of the actions of the executive do not operate in the same way in relation to the legislature. Our Westminster style of government supports the principle that legislation should, as far as possible, not interfere with agreements that a former or current administration has made with a private person or entity. But if Parliament seeks to intervene, the only legal restraint on parliamentary action is the Constitution.
Let us return to the basic question: if Parliament were to pass a law to ban oil drilling in The Bahamas or to effectively invalidate BPC’s exploratory oil-drilling licenses, would that violate the Constitution? This is the question that our MPs should be asking. No doubt, BPC would rely on Article 27 of the Constitution. BPC would have to convince the Supreme Court that a law banning oil drilling would amount to the compulsory possession or acquisition of their property without compensation. A law banning drilling or invalidating licenses that have already been approved and relied upon is clearly not the same as an act of possession or acquisition. Still, there is the risk that a lawyer might be able to convince the courts that such an enactment would amount to an acquisition of BPC’s property by way of BPC having its “property” (namely BPC’s expected profits should oil be found) being taken away. They would argue that the Constitution protects individuals from compulsory deprivation of property, even though the relevant constitutional provision only states the fundamental protection in terms of a protection against the compulsory possession or acquisition of property without compensation. Though past cases are clear that the constitutional protection against compulsory acquisition of property without compensation (the phraseology of Article 27 of the Constitution) is a different and narrower protection than a constitutional protection against compulsory deprivation of property without compensation, which some constitutions of other countries afford, there is a risk here. But given the almost incalculable loss that allowing any form of oil drilling in Bahamian waters represents, surely Parliament must see that it has a duty to take on that risk and legislate to protect our natural heritage and Bahamian identity. The risk analysis is complicated by the marginal note to Article 27 that, although strictly not a part of Article 27, refers to the provision as “protection from deprivation of property”. The phraseology is repeated in Article 15 of the Constitution – an Article of the Constitution that is generally considered unenforceable because it is regarded as a preamble to the more detailed fundamental freedoms that follow it, though this point, regarding the enforceability of Article 15, remains moot for some very good reasons.
Let the Prime Minister and his fellow parliamentarians hear our plea: lead your fellow law-makers in Parliament, Prime Minister. Bring to the floor of the House, or support a private members’ bill, to ban any form of oil-related drilling in the Bahamas. Bahamians know you can make hard decisions in the national interest. And we are grateful. Now the world is watching the manner of our bearing – specifically the question of our sovereignty and the presumption of constitutionality that attaches to all enactments of our Parliament. BPC has fewer moves available to it if the sovereign authority of Parliament (limited only by the Constitution) acts to resolve this matter.
January 7, 2021.