The Tribune

EDITOR, The Tribune.

In a previous letter (published January 12th), I explained that a legal ban on oil drilling and extraction would not amount to compulsory possession or acquisition without compensation of BPC’s property under the Constitution. I also pointed out possible risks, but noted these should not deter Parliament from imposing a ban. Some argue that while a Parliamentary ban might be constitutional, it would be unfair to BPC – given that it has already relied on approved licenses. I would like to suggest another approach – a path that allows the Prime Minister to lead Parliament in overriding the license agreements, despite the lost economic opportunity that this might entail for BPC.

The crux of this argument rests on recognizing the categorical difference between a decision of the Executive to permit exploratory drilling, and a decision to permit oil extraction from our territory. The former would not require the same degree of consultation as the latter. In the Bahamian context, the difference in magnitude of the respective decisions is stark, given all the reasons that have been articulated by objectors. It is worth listing some of these objections: (1) it would be incongruous with the country’s identity and best interests for oil rigs to endanger our natural heritage and tourist-based economy; (2) oil rigs would desecrate our precious seascapes – acknowledged as some of the most beautiful on the planet; (3) oil extraction might end up harming the environment of neighbouring countries; and (4) petrodollars would distort our democracy, which is already under pressure from foreign and corporate money. There are other objections, but I would like to add another. The Bahamas faces an existential threat from climate change, and how could we find local and international support in adapting to this threat if we dig our own grave by encouraging fossil-fuel dependence?

Norms regarding national consultation cannot be found explicitly in the words of our Constitution. But the very first Article of the Constitution states that “The Commonwealth of The Bahamas shall be a sovereign democratic State.” This most important of constitutional provisions does not just mean that there should be regular elections. It also means that elected political representatives are required to check what the people think about crucial policy issues. BPC shareholders and managers should have realised that any decision to stain the Bahamian environment and diversify the Bahamian economy by jeopardizing its main revenue-driver would require intensive consultation with the Bahamian people. Wide consultation on deeply important national issues is necessary when they involve fundamental national interests. At the very least, Parliament should debate the question at length. Sophisticated investors know this, sincere politicians understand this, and so will judges charged with judicial review of any administrative decisions or legislative ban.

If the government-approved licenses not only grant BPC exploratory permission but also extraction rights, elected public officials on both sides of the political divide will have miserably betrayed the democratic and rational ideals upon which our liberal democratic order rests. No public official should have agreed to grant oil-extraction rights without consulting the Bahamian people – either through a referendum or an extensive public inquiry.

Regardless, if the signed agreements include extraction permission, this does not discharge Parliament of its duty to correct the mistakes of the Executive. And if this means Parliament having to override the licenses, then Parliament should not be dissuaded by BPC objections that it was induced into making investments based on the word of the Government. BPC knew the risk if public officials within the Executive failed to ensure that the Bahamian public’s views on the matter were properly aired. It took an inordinate chance by investing without knowing the state of collective consensus on this matter. BPC cannot seriously have thought that a couple of environmental impact studies would be sufficient to discharge its own due diligence responsibilities to shareholders regarding the social and political dimension of the investment. Or did BPC’S managers think it could bypass the complex social and democratic issues? Any consideration by our Parliament on whether to ban oil extraction from our magnificent seabed must reflect that BPC ought to have known that any proper parliament would act to protect the democratic will of the people regarding such a momentous national decision about one of the most special places on this planet. But we all know the truth. BPC has little regard for our institutions, and holds them in contempt.

A final word regarding separation of powers. In reality, our Westminster-style of government is based on a fusion of the Executive and Legislature. The Prime Minister and Cabinet sit in Parliament as law-makers, and the executive branch in Parliament mostly dominates the legislative branch. By convention, the executive branch in Parliament will normally defend the actions of the executive branch of government, but our written Constitution does not require the executive branch sitting in Parliament to defend or support the actions of the executive branch of government. Such a requirement would be inconsistent with a fundamental feature of the Westminster system, which anticipates one of the functions Parliament should serve is to check and balance the power of the Executive. Good sense dictates, however, that the executive branch sitting in Parliament will want to mobilize political support in Parliament for the executive decisions it makes, but this norm, on occasion, has to be set aside. On questions of morality or where there is deep division or uncertainty within the governing party on a matter, the Prime Minister may remove the whip on a vote. This means the Executive sitting in Parliament and backbenchers are allowed to vote in line with their conscience or their independent positions on the question. The important point here is that our system of government supports occasions for members of the executive branch of government sitting in Parliament (as lawmakers) to check and balance actions taken or contemplated by the executive branch. These occasions should not be seen as setting up a contradiction, but as occasions that our system allows for self-correction and expressions of individual conscience and political independence. Such an occasion is now upon us.

Both PLP and FNM administrations have led BPC to believe that it could just waltz into our country and extract oil from our seabed without Bahamians having a voice in the matter. BPC understood the risks. And, if a ban on oil extraction is ever constitutionally challenged, the Government and BPC should expect the courts to highlight their dereliction of duty. It is highly likely, on the other hand, that any court reviewing the constitutionality of such a ban will have a great deal of sympathy for the constitutional checks and balances exercised by the members of Parliament, voting with their conscience, to correct the mistakes of the executive branch of government.

MICHAEL STEVENSON

Nassau,

January 19, 2021.