Attorney Wayne Munroe has filed a writ against the prime minister and attorney general on behalf of 21 people arguing that the state of emergency and emergency orders are unconstitutional.
The writ was filed yesterday. Prime Minister Dr. Hubert Minnis, in his capacity as the competent authority, and Attorney General Carl Bethel are listed that first and second defendants respectively.
Twenty-one people are listed as the plaintiffs, some of whom were arrested, charged and fined for breaching the emergency orders, Munroe told The Nassau Guardian.
Munroe is seeking declarations that, “In the circumstances that existed at the time the proclamation of a state of emergency were made by the governor general, no state of emergency within the meaning and contemplation of Article 29 of the constitution existed in The Bahamas.”
He is also asking a court for an order quashing the criminal complaints and convictions against the plaintiffs charged with breaching the emergency orders. Munroe also asked for an order that the fines paid by the plaintiffs, who were charged with violating the orders, be returned to the plaintiffs.
Munroe is also asking for an order that the defendants pay damages to the plaintiffs “for breach of their fundamental rights guaranteed by the constitution”.
He is also seeking a declaration that the Emergency Regulations (COVID-19) 2020, “made by the governor general were made in excess of jurisdiction granted to him by the Emergency Powers Act”.
“In the circumstances obtaining at the time that all of the orders made by the first defendant (Minnis), purportedly pursuant to the Emergency (COVID-19) Regulations 2020, were made, insofar as they purport to create criminal offenses, create arrestable offenses, or effect private contractual rights, they were ultra vires the Emergency (COVID-19) Regulations 2020, and/or did not meet the requirement of being reasonably justifiable set out in Article 29 (2) of the constitution.”
Article 29 of the constitution “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.”
Article 19 of the constitution provides that “no person shall be deprived of his personal liberty” except for a number of specific circumstances, one of which is “for the purpose of preventing the spread of an infectious or contagious disease.”
Article 25 of the constitution, which guarantees freedom of movement, says that “no person shall be hindered in the enjoyment of his freedom of movement”.
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 declarations of emergency listed the prime minister as the competent authority.
A number of orders, including mandatory curfews and lockdowns, as well as the banning of domestic and international travel, were set out by Minnis in an effort to curb the spread of COVID-19.
The orders also provided fines and jail time for those who were found to have defied the restrictions.
Scores of Bahamians have been fined for breaching the orders, from operating a business during the lockdown, to violating the curfew and not wearing a mask in public.
The plaintiffs in the matter are: Charles Johnson; Dave Nixon; Rashanda Miller; Peter Allen Rolle; Javon Javille Rolle; Shivago Davis; Kevano Hutchinson; Ramone Deangelo Rolle; Phillip Jayavonni Rolle; Fabian Davis; Meia Charlton; Anthony Anderson Rolle; Timel Wilson; Kishna Bodie-Williams; Nebat Brent-Williams; Glenda Simms; Giovanni Sawyer; Eldon Kelley; Sandra Ferguson; Henry Rolle and Jenson Brown.