INGRAHAM (PRIME MINISTER OF THE COMMONWEALTH OF THE BAHAMAS) A AL. v.

MCEWAN
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Citation # BS 2002 CA 13
Country The Bahamas
Court Court of Appeal
Judge Sawyer, P. | Churaman, J.A. | Ganpatsingh, J.A. | Ibrahim, J.A. | Osadebay, J.A.
Subject Constitutional law
Date July 25, 2002
Suit No. Civil Appeal No. 24 of 2002
Subsubject Fundamental rights and freedoms - Right to vote - Whether there is a fundamental right to vote
guaranteed by the fundamental rights provisions of the Constitution - Whether, if such a right exists, it
is to be exercised in absolute secrecy - Finding that neither Article 1 nor Article 23 of the Constitution
contained any express or implied reference to the right to vote or the right to vote in absolute secrecy
- Finding that there were no fads on which a court could reasonable find even a preponderance of
probability that there was any factual basis that a voter's identity and his vote could be revealed by the
marking of the counterfoil.
Full Text Appearances:
Mr. Milton A Evans, Mr. David Higgins with him for the appellants.
Dr Peter D Maynard, Messrs Dwight Glinton and Jason Maynard with him, for the respondent. (end of
page 1)
SAWYER, P.: At the conclusion of the hearing of this appeal on 29 April 2002, the unanimous decision
of this Court that the appeal should be allowed, and the consequential orders made by the learned
Chief Justice set .aside, was announced.
I now give my reasons for agreeing that this appeal should be allowed. The history of this case may
be summarised as follows:
The respondent alleges that in the March 14, 1997 General Elections, when he went to vote, the
presiding officer did not follow section 59(1)(b) of the Parliamentary Elections Act, 1992 (No. 1 of
1992) ("the Act"); instead of marking the voter's registration number on the counterfoil of the ballot, the
presiding officer marked the ballot number opposite the respondent's name in the register of voters.
Because of that, the respondent says that he fears that if he votes under the law as it now is, not only
will his identity become known but also how he votes will become known. That action, assuming the
truth of the respondent's allegation, was, of course, contrary to the express provisions of the Act.
During the ensuing 5-year period, the respondent mounted a campaign to have the Act changed to
remove the requirement that the presiding officer at a polling station among other things, "and mark
the said number on the counterfoil" ("the impugned words") be removed from the Act so that a
registered voter can vote in "absolute secrecy".
That campaign apparently bore little, if any, fruit. On 15 April 2002, after the General Elections had
been called, the respondent caused the originating summons in this matter to be filed in the Supreme
Court. That originating summons gave the appellants a fortnight in which to enter appearances to it; it
is not clear whether the learned Chief Justice "by order" abridged that time or not under Order 3, rule
4 of the Rules of the Supreme Court 1978. (end of page 2)
In that originating summons, as amended on 24 April 2002 the day before the advance poll - the
respondent claimed declaratory relief under Article 28 of the Constitution. One of the grounds for that
claim (and the only one argued before us) is that the impugned words in subsection 59(1)(b) of the Act
contravenes Articles 1 and 23 of the Constitution.

It must be noted that the originating summons (original and amended) and interlocutory summons
(original and amended) were all issued after Her Excellency the Governor-General had dissolved
Parliament and issued Writs of Election for the 40 Parliamentary electoral constituencies of The
Bahamas. Election day was fixed for 2 May 2002 and the advance poll for 25 April 2002.
On 24 April 2002, on an amended interlocutory summons, the learned Chief Justice granted the
respondent all the reliefs he was seeking in his substantive action although at that time he made no
express finding that the impugned words of the Act contravened the fundamental rights provisions of
Articles 1 and 23 of the Constitution and were therefore void.
That order was set aside on the morning of 25 April 2002 by this Court (differently constituted). The
reasons for that decision have just recently been given.
On 26 April 2002, the learned Chief Justice heard the substantive action even though the final stage
of the General Elections was only-6 days away and the time for the appellants to enter appearances
to the originating summons had still not elapsed.
Following the hearing on 26 April 2002, the learned Chief Justice delivered his written judgment on 29
April 2002, in favour of the respondent, but stayed execution of it until noon on 1 May 2002 in case
the appellants wished to appeal.
The learned Chief Justice ordered that "presiding officers be prohibited from marking the registered
number of any voter on the counterfoil of any ballot paper issued for an election."
That judgment was apparently based on the "assumption" that the right to vote in "absolute secrecy"
was within the "penumbra" or a "necessary extension" of Article 23 of the Constitution. (end of page 3)
At paragraph 5 of his judgment (bottom of page 4 top of page 5) the learned Chief Justice wrote:
"Moreover, if the right to vote had the importance which is assumed, it is curious that the framers of
the Constitution did not consider it deserving of enumeration among those rights which are specified
as attracting the peculiar protection of 'fundamental rights and freedoms' in Chapter III of the
Constitution. However, Mr. Evans was content to adopt the assumption of counsel for the plaintiff that
the right to vote is within the penumbra, or a necessary extension, of Article 23. In short, the right to
vote is the supreme expression. 1 am content, for present purposes, to be transported by the same
assumption."
On page 6 of his judgment, the learned Chief Justice again appears to base his decision on another
assumption of counsel for the respondent. At paragraph 10 on that page, he wrote: "On the
assumption that this insertion of the voter's number on the counterfoil is intended to facilitate the work
of the Election Court, Dr Maynard submits that this is inconsistent with section 87 of the Act:.."
Now, I think it is trite law that one ought not to decide the constitutional validity or infirmity of a
statutory provision, enacted by Parliament under the powers mentioned in Article 52 of the
Constitution, based on assumptions, either of fact or law.
To paraphrase what was said as long ago as Williams v. Powell (1894) WN 141 and repeated by
Buckley and Scarman, L.JJ. in Wallersteiner v. Moir [1974] 1 W.L.R. 991 at pages 1029A-D and 1030
C-D and Megarry, J. in Helzger v. Department of Health and Social Security [1977] 3 All E.R. 444 at
451, if the Court ought not make declarations of right on admissions or default of pleadings under the
Rules of the Supreme Court, 1978, then, a fortiori it ought not make a declaration that a statutory
provision, duly enacted by Parliament, contravenes any relevant provision of the Constitution based
on assumptions advanced by counsel, however eminent. Such a decision becomes an hypothetical
exercise. (end of page 4)
At the hearing of the appeal from the interlocutory order, this Court had been at some pains to draw
counsel's attention to the decision of the Privy Council in Attorney General v. Antigua Times
Newspapers Ltd [1975] 3 W.L.R. 232 at 241 - 242. That case concerned two main issues: (1) whether
a company was a "person" for the purposes of section 1 of the Constitution of Antigua (which is

identical to Article 15 of the Constitution of The Bahamas) and (2) whether the statutory requirement
that each newspaper deposit $10,000.00 or take out insurance in the like amount to meet any
judgment given against them for libel contravened the provisions of section 10(1) of the Constitution
as a hindrance to the "freedom of expression" there guaranteed.
The Privy Council held that a company is a "person" for the purposes of the fundamental rights
provisions of the Antigua Constitution insofar as those rights are applicable and that the requirement
of the statute did not infringe the newspapers' freedom of expression guaranteed by section 10(1) of
that Constitution.
In dealing with the agreed position of counsel for both sides in that case on three propositions of law,
Lord Fraser of Tullybelton who delivered the judgment of their Lordships, at the pages cited, said:
"At the trial counsel agreed three propositions of law and that agreement may have influenced the
evidence called at the trial. Despite this agreement, it appears from the judgment of Lewis, C.J. in the
Court of Appeal that counsel for the respondent there submitted that it was incompetent for parties by
concessions or agreement to tie the hands of the Court in the determination of the question whether
there had been an infringement of the Constitution. Lewis, C.J. said that he completely agreed with
that submission. IN THEIR LORDSHIPS' VIEW, A COURT WHICH HAS TO DECIDE A QUESTION
OF CONSTRUCTION, WHETHER IT BE OF A STATUTE OR OF A CONSTITUTION, CANNOT BE
FETTERED IN THE EXERCISE OF ITS JUDGMENT BY ANY AGREEMENT BETWEEN COUNSEL.
IN THEIR VIEW, LOUISY, J., THE TRIAL JUDGE WAS RIGHT TO REFUSE TO BE BOUND BY THE
THREE AGREED PROPOSITIONS OF LAW." (Emphasis mine) (end of page 5)
The main issues in this case are whether or not there is a fundamental right to vote guaranteed by the
fundamental rights provisions of the Constitution and if so, whether that right is to be exercised in
"absolute secrecy".
The learned Chief Justice appears to have been attracted to the argument that because Article 1 of
the Constitution declares the Commonwealth of The Bahamas to be a "sovereign and democratic
State" that therefore meant that "democracy" was the "constitutional economy" of The Bahamas. His
Lordship also appeared to be influenced by the fact that the Constitution was drafted against the
backdrop of such international conventions as the United Nations' Universal Declaration of Human
Rights (10 December 1948), the International Covenant on Civil and Political Rights (16 December
1966 entered into force on 23 March 1976) and the European Convention on Human Rights each of
which requires "secrecy" for the voting process and that it is therefore implicit in the fundamental
rights provisions of the Constitution that the right to vote is to be exercised in "absolute secrecy".
Now there is nothing inherently wrong with a Court in this jurisdiction looking at international
conventions in order to be able to construe a statute or the Constitution where there may be ambiguity
in the language used to draft a particular provision.
It does not appear that the fact that the Colony of the Bahama Islands had, by statute, in 1946,
adopted the procedure of voting by "secret ballot" was drawn to the learned Chief Justice's attention
before he gave his judgment.
To the extent that the learned Chief Justice's decision seemed to be influenced by the respondent's
argument that the mentioned international Conventions influenced the drafting of the fundamental
right of freedom of expression in the Constitution, it seems to have ignored the fact that incorporation
of international conventions into the municipal law of The Bahamas, while it may be done in the
Constitution can also be done by a statute. It also seemed to have ignored the history of the franchise
in The Bahamas.
In my view, neither Article 1 nor Article 23 of the Constitution contain any express or implied reference
to the right to vote or the right to vote in "absolute (end of page 6) secrecy". The right to vote and to
vote by "secret ballot" in The Bahamas is statutory.
Furthermore, a cursory examination of Article 21 of the 1948 Convention, Article 25 of the 1976
Convention and Article 10 of the European Convention shows that the word "absolute" does not
appear in any of those provisions. Unfortunately the learned Chief Justice made no express reference

in his judgment to any of those provisions and that makes it difficult to understand how he arrived at
the conclusions he did.
Before this Court counsel for the respondent eventually could only say that the right to vote is
"encompassed in Article 23 as part of the freedom to impart information in confidence without
interference" as mentioned in that Article and that the impugned words were not reasonably justifiable
in a democratic society.
Counsel for the respondent also submitted that since "voting is a fundamental way of imparting
information and it [voting] is fundamental in a democratic state" the right to vote in "absolute secrecy'
was therefore "encompassed" in Article 23 of the Constitution. With respect, that is a circular
argument since there is nothing in Articles 1 or 23 which expressly or even by necessary implication
includes the "right to vote" nor the right to vote in "absolute secrecy".
In this regard, a careful study of judgments in a number of constitutional cases, which have been
heard and determined by the Privy Council, is helpful in appreciating the task a Court has when it is
asked to decide whether legislation is constitutionally infringed. I shall refer to a few of those decisions
in due course.
It does not appear that the learned Chief Justice considered the respondent's case in light of the very
words of Articles 15 and 23 of the Constitution for if the right to vote is a "fundamental right" as
enumerated in Article 15 of the Constitution and is protected by Article 23, it would apply to "every
person" in The Bahamas and could not be restricted to citizens of The Bahamas unless those Articles
were amended by the necessary majority in both houses of Parliament and by a majority of the
registered electors in a referendum. It would also mean that mental patients; incarcerated persons,
(end of page 7) children and artificial persons would also have the right to vote. It may also mean that
even the requirement for registration is ultra vires the Constitution. That has not been argued but that,
it appears to me, is implied in the learned Chief Justice's judgment.
I say that for these reasons.
Firstly, the very words of Articles 15 through 27 of the Constitution refer to every person" in The
Bahamas.
Secondly, because "fundamental human rights" mean just that; they are those rights which are
available to every person (including artificial persons where appropriate) regardless of age, sex,
national origin, ethnicity, religion and so on.
Thirdly, fundamental rights provisions are intended to safeguard the rights of individuals (human or
artificial where appropriate) from any overweening authority of the State. When Parliament is
dissolved, however, the legislative branch of Government ceases to be embodied in the Members of
the previous Parliament and Senate, and the authority of the State, as to that aspect of government is
returned to the electors; the electors as individuals, therefore, in exercising their right to vote in a
general election, constitute "the State" and can hardly complain about oppression by themselves
against themselves.
As a matter of comparison I note that countries such as Guyana, Trinidad and Tobago and Canada
(which have guaranties for freedom of expression in their fundamental documents) have found it
necessary to also include express provisions for the right to vote in their respective fundamental
documents - the Constitutions of Guyana, Trinidad and Tobago and the Canadian Charter of Rights. It
is particularly significant, I think, that the two Caribbean countries also have the right to vote by "secret
ballot" in their Constitutions.
Be that as it may, in considering the respondent's case, the Court must bear in mind the history of the
legislation of which the Act is the present result as well as the history of the fundamental rights
provisions of the Constitution as they have evolved from the common law, through two written colonial
Constitutions to the present national Constitution. (end of page 8)
In Moses Hinds and Others v. The Queen [1977] A.C. 195 at p. 211D, Lord Diplock, who gave the
judgment for the majority stated what the approach to interpretation of a "Westminster Model"
Constitution should be:- "A written constitution, like any other written instrument affecting legal rights
or obligations, FALLS TO BE CONSTRUED IN THE LIGHT OF THE SUBJECT MATTER AND OF

THE SURROUNDING CIRCUMSTANCES WITH REFERENCE TO WHICH IT WAS MADE."

(Emphasis mine)
Adopting that approach to the issues that arose out of the respondent's application, it is important to
consider, first of all, the actual provisions of the Constitution and the surrounding circumstances with
reference to which it was made.
The present Constitution of The Bahamas is the third. It was preceded by the 1963 Constitution
(which came into effect on 7 January 1964) the second (which came into effect in 1969). Both of those
Constitutions contained fundamental rights provisions in Chapter one. There was no equivalent to
Articles 1, 2 and 54 (among others) of the 1973 Constitution for obvious reasons.
It is interesting to note, however, that the proviso to section 35(1) of the 1963 Constitution and section
36(1) of the 1969 Consfitution expressly mentioned the principle of one person one vote. Those
provisions have no counterpart in the 1973 Constitution. Just as important to note, is the fact that
those provisions were contained in the parts of those Constitutions that dealt with the Legislature
rather than in the fundamental rights provisions.
In those two documents as in the present Constitution, each of the legislative, executive and judicial
branches of government are dealt with in their respective separate chapters. In the present
Constitution, the chapter dealing with the legislative branch is Chapter V, part 3 of which deals with
the House of Assembly whose members are referred to as "Members of Parliament". Article 46(2) of
Chapter V is the provision that was referred to in passing by the learned (end of page 9) Chief Justice
when he said that that Article "merely authorises Parliament to enact laws for election". Article 46
reads:
"46.(1) The House of Assembly shall consist of thirty-eight members or such greater number of
members as may be specified by an Order made by the Governor-General in accordance with the
provisions of Article 70 of this Constitution.
(2) The members of the House shall be known as `Members of Parliament' and shall be persons who,
being qualified for election as Members of Parliament in accordance with the provisions of this
Constitution, HAVE BEEN SO ELECTED IN THE MANNER PROVIDED BY ANY LAW IN FORCE IN
THE BAHAMAS." (Emphasis mine)
In Minister of Home Affairs v. Fisher [1979] 2 WLR 889 at p. 895E, Lord Wilberforce, who delivered
the judgment of the Privy Council on the interpretation of the Constitution of Bermuda, said that ...A Constitution is a legal instrument giving rise, amongst other things, to individual rights capable of
enforcement in a Court of law. Respect must be paid to the language which has been used and to
THE TRADITIONS AND USAGES WHICH HAVE GIVEN MEANING TO THAT LANGUAGE. IT IS
QUITE CONSISTENT WITH THIS, AND WITH THE RECOGNITION THAT THE RULES OF
INTERPRETATION MAY APPLY, TO TAKE AS A POINT OF DEPARTURE FOR THE PROCESS OF
INTERPRETATION, A RECOGNITION OF THE CHARACTER AND ORIGIN OF THE INSTRUMENT,
AND TO BE GUIDED BY THE PRINCIPLE OF GIVING FULL RECOGNITION AND EFFECT TO
THOSE FUNDAMENTAL RIGHTS AND FREEDOMS WITH A STATEMENT OF WHICH THE
CONSTITUTION COMMENCES." (Emphasis mine)
Bearing those principles of constitutional interpretation well in mind, it seems to me that the language
of Article 1 of the Constitution of The Bahamas is apposite to declare what the new status of the
Colony of the Bahama Islands was to be with effect from 10 July 1973 in terms of its internal as well
as external affairs. The terms of that article - as of the whole Constitution - were actually laid before
the Parliament of the United Kingdom on 26 June 1973 when Article 1 (end of page 10) would have
been speaking futuristically. It does not appear that that Article was intended to do anything more than
that.
That Article said nothing about the right to vote or to do so in "absolute secrecy". Further, if it did
create a fundamental right to vote in "absolute secrecy" as the learned Chief Justice found, there

would have been no need to repeat the provision of such a right in Article 23. It also appears that the
fact that Article 1 is not contained in Chapter III of the Constitution and is not mentioned in Article 28
which provides the machinery for enforcement of an individual's fundamental rights was not
considered by the learned Chief Justice in giving judgment in this case; it may well be that had it
been, his decision may well have been different.
In any event, the effect of the learned Chief Justice's decision, had it been allowed to stand would
have meant that the two parts of the constitutionally mandated general elections would have been
conducted according to two different sets of rules - this result need only be stated to be rejected.
I now turn to the history of the franchise or the right to vote in The Bahamas.
The right to vote for a representative assembly was first given to white adult male freeholders and
"free [adult] men of colour" who were also freeholders in 1729. From that time until 1946, voting was
done only by adult male freeholders and was done openly.
The comment by Lord Denning, M.R. in Morgan v. Simpson [1974] 3 W.L.R. 517 at p. 523 E that
"Being open, it was disgraced by abuses of every kind, especially at parliamentary elections", if true of
England, was, on a balance of probabilities, true of the Colony of The Bahama Islands.
It must be remembered that in the United Kingdom's system of government, only Parliament had the
authority to decide who its members were as well as how those members were selected/elected. That
is the system of government the Colony of the Bahama Islands inherited - mutatis mutandis. The
Parliament of the United Kingdom also had the authority to enfranchise electors to elect its members.
In England, various statutes extended the (end of page 11) franchise until by the 1920's there was
universal adult suffrage there. Universal adult suffrage did not come to the Bahama Islands until 1962.
The first step on the road to universal adult suffrage took place in 1946 when the legislature of the
Bahama Islands enacted the General Assembly Elections Act, 1946 which introduced voting by secret
ballot to the Bahama Islands. That Act did not have any provision for marking the ballots in any way
apart from the signature of the presiding officer. This was doubtless because of the very small size of
the voting population (adult male freeholders) and because each returning officer for each
constituency (district) was responsible for the preparation and issue of the ballot papers for that
constituency.
Then in 1959, the House of Assembly Elections Act, 1959 was passed.
In 1960, as the population of the Bahama Islands increased and modernisation of the public service
improved, the House of Assembly Elections Act, 1959 was amended to add a subparagraph (b) to
subsection 55(1) of that Act. That subsection is identical to section 54(1)(b) of the Representation of
the People Act, 1969 and to section 59(1)(b) of the Act. I set out section 59(1) of the Act here for ease
of reference:
"59.(1) The presiding officer shall give one ballot paper, and no more, to any person whom he permits
to vote, but before doing so he shall:(a) sign his own name on the back of the ballot paper;
(b) call out the number, full name and description of that person as stated in the register, and mark the
said number on the counterfoil;
(c) put a mark against the name of that person in the copy of the register in use in the polling place, so
as to indicate that that person has voted in that polling division; and
(d) mark the thumb of the person by dipping the thumb of his right hand up to at least (end of page 12)
the first joint in such indelible ink or by such other mark as designated by the Parliamentary
Commissioner by notice in the Gazette, after approval by the Prime Minister in consultation with the
Leader of the Opposition, save that if the person has no right hand thumb or if for any other reason it
is, in the opinion of the presiding officer, not practical to mark that thumb, the thumb of the left hand or
such other finger as the presiding officer shall direct shall be so marked or if in the opinion of the

presiding officer it is not practicable to mark any finger of the person, the person shall be marked in
such a way as the presiding officer considers sufficient to indicate that a ballot has been issued to that
person; and
(e) stamp that person's voter's card with a stamp which shall indicate that the holder of that card has
voted in that election in that polling division."
The impugned words, which I have underlined above, appear to me to have had their genesis in
section 2 of the English Ballot Act, 1872. The provision for the marking of the counterfoil of the ballot
paper is still, so far as I am aware, still part of the law in the United Kingdom so that for over one
hundred years, the provision was part of the law in what I consider to be a democratic State. Dr
Maynard dismissed the relevance of that history by saying that the 1872 provision didn't work in
England and its equivalent is not working here. That section reads:"In the case of a poll at an election the votes shall be given by ballot. The ballot of each voter shall
consist of a paper (in this Act called a ballot paper) shewing the names and description of the
candidates. EACH BALLOT PAPER SHALL HAVE A NUMBER PRINTED ON THE BACK, AND
SHALL HAVE ATTACHED A COUNTERFOIL WITH THE SAME NUMBER PRINTED ON THE FACE.
At the time of the voting, the ballot paper shall be marked on both sides with an official mark, and
delivered to the voter within the polling station, AND THE NUMBER OF SUCH VOTER ON THE
REGISTER OF VOTERS SHALL BE MARKED ON THE COUNTERFOIL, AND THE VOTER HAVING
SECRETLY MARKED HIS VOTE ON THE PAPER, AND FOLDED (end of page 13) IT UP SO AS TO
CONCEAL HIS VOTE, shall place it in a closed box in the presence of the officer presiding at the
polling station (in this Act called the 'presiding officer') after having shewn to him the official mark at
the back.
Any ballot paper which has not on its back the official mark, or on which votes are given to more
candidates than the voter is entitled to vote for, or on which anything except the said number on the
back, is written or marked by which the voter can be identified, shall be void and not counted."
Regarding that provision, at page 523H - 524A of Morgan v. Simpson already mentioned, Lord
Denning, M.R. said this:
"Then in 1872 Parliament passed the Ballot Act, 1872 (PARLIAMENTARY AND MUNICIPAL
ELECTIONS ACT). IT REVOLUTIONISED THE SYSTEM OF VOTING AT ELECTIONS. IT
PROVIDED FOR VOTING BY SECRET BALLOT. It prescribed rules and set out forms of ballot
papers. It contained a provision as to non-compliance with the rules. It is the forerunner of the section
which we have to consider today." (Emphasis mine)
In Re Thornbury Division of Gloucestershire Election Petition (1886) XVI Q.B.D 739, the English Court
of Appeal had to consider, among other things, whether the object of the secret ballot was to secure
"complete secrecy" in voting. At p. 746, Hawkins J, who delivered the judgment of the Court of Appeal
said "We have arrived at the conclusion that the judgment of the election judges is right, and that the votes
are good. In considering the construction to be put upon the various provisions in the Ballot Act, it
should be borne in mind that no enactment contained in it affects the franchise; the Act relates to
procedure alone. THE RIGHT TO VOTE EXISTS EXACTLY AS IT DID BEFORE THAT ACT WAS
PASSED: THAT ACT MERELY DIRECTS THE MODE IN WHICH THE VOTE SHALL BE GIVEN, THE
MAIN OBJECT OF IT BEING TO ENSURE, AS FAR AS POSSIBLE, SECRECY."
Let me say at once that I accept that unlike the English Ballot Act, 1872, the Act does deal with the
right to vote, among other things. However the Act (end of page 14) does, like the English Ballot Act
1872, deal with the procedure where there is a contested election, and enables rules to be made and
specifies the forms to be used in the conduct of general and bye-elections for Parliament.

Section 5 of the Act provides that Members of Parliament for the several constituencies "shall be
elected in accordance with the provisions of this Act"; and section 6 states that it is made under Article
48(2) of the Constitution. The last section disqualifies a number of persons from being eligible to be
elected to Parliament in addition to those already mentioned in article 48(1).
The mention of Article 48 in the Act should have alerted counsel on both sides to the fact that the right
to vote in The Bahamas, important though it be, is a statutory right. So too, a careful examination of all
of the provisions of the Act would have shown that the right to vote by "secret ballot" is also a statutory
right in The Bahamas and being statutory, it is the manner in which the Parliament of The Bahamas
(and its predecessors) had probably chosen to bring into the law of The Bahamas the requirements of
any relevant international conventions on the topic.
Unfortunately, neither side appeared to have considered very deeply what the issues really are and so
by skimming the surface, a great deal of disturbance, which was totally unjustified, has resulted.
When Article 46(2) of the Constitution and its predecessor provisions were drafted, there was already
in existence in the statute law of the Bahama Islands the right to vote by "secret ballot." In that regard,
I respectfully adopt what was said by Lord Denning MR in Morgan v. Simpson as to the effect of the
various provisions of the Act and its predecessors as part of my reasoning in this case. While the right
to vote in secret was not absolute, it nevertheless was in existence and that is most probably why
Article 46(2) is couched in the terms used.
In fact, it is Article 52(1) which authorises Parliament to enact laws for the "peace, order, and good
government" of The Bahamas. The Act, in my judgment is a law for the purposes of both Articles 46(2)
and 52(1) of the Constitution. (end of page 15)
It may be that if the learned Chief Justice had considered the actual words of Article 46 of the
Constitution as well as the legal constitutional matrix out of which they have developed, he may well
have refused the declarations sought by the respondent.
The time may well come when the culture of The Bahamas will be of such high integrity that checks
and balances in the electoral system are no longer necessary. Bearing in mind the notorious
allegations made following the 1982 and 1987 general elections of electoral fraud, the very
misconduct mentioned in the judgment in Roberts v. Pinder Action No 1061 of 1992 in the Election
Court (unreported) on which Dr Maynard relies to show why the impugned provisions should be struck
down is a clear indication that the desired standard of public behaviour has not yet been attained by
everyone.
That is sufficient to dispose of the reasons for allowing the appeal. However, counsel for the
appellants before the learned Chief Justice and before this Court made the alternative submission that
if the Court should find that the right to vote by secret ballot is within the "penumbra" of Article 23 then
the impugned words even if seen as a qualification of the right to vote by "absolutely secret" ballot, is
saved from constitutional infirmity by the concluding words of Article 23(2) of the Constitution.
Article 23 of the Constitution reads:
"23-(1) Except with his consent, no person shall be hindered in the enjoyment of his freedom of
expression, and for the purposes of this Article the said freedom includes freedom to hold opinions, to
receive and impart ideas and information without interference, and freedom from interference with his
correspondence.
(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 makes provision (a) which is reasonably required - (end of page 16)
(i) in the interests of defence, public safety, public order, public morality or public health; or

(ii) for the purpose of protecting the rights, reputations and freedoms of other persons, preventing the
disclosure of information received in confidence, maintaining the authority and independence of the
Courts, or regulating telephony, telegraph, posts, wireless broadcasting, television, public exhibitions
or public entertainment; or
(b) which imposes restrictions upon persons holding office under the Crown or upon members of a
disciplined force,
and except so far as that provision or, as the case may be, the thing done under the authority thereof
is shown not to be reasonably justifiable in a democratic society."
In order for a person who alleges that a law is constitutionally infirm because it is in conflict with a
fundamental rights provision such as Article 23 of the Constitution, it must be shown that the law is "SO ARBITRARY AS TO COMPEL THE CONCLUSION THAT IT DOES NOT INCLUDE AN
EXERTION OF THE [PUBLIC INTEREST ORDER) POWER BUT CONSTITUTES IN SUBSTANCE
AND EFFECT, THE DIRECT EXECUTION OF A DIFFERENT AND FORBIDDEN POWER" (Emphasis
mine)
as Louisy, J. said in Antigua Times case already mentioned.
The proper approach by a Court to a consideration of the constitutional validity of legislation enacted
by Parliament "is to presume until the contrary appears or is shown, that all Acts passed by the
Parliament of [The Bahamas] were reasonably required" - per Lord Fraser at p 243C in Attorney
General v. Antigua Times already mentioned.
Dr Maynard says, in effect, that the presumption of constitutionality is not an irrebuttable one. I agree.
The standard to be met in order to rebut it, however, is a very high one. (end of page 17)
The presumption is not rebutted by an "assumption" of the existence of a constitutional right. The
issue of constitutional infirmity of legislation enacted by Parliament in exercise of its legislative power
can only arise if there is a constitutional provision that creates a duty on Parliament to conform
particular legislation to the constitutional norm.
The respondent's case amounts to this. On the alternate argument, he has a constitutional right to
impart information in confidence and the impugned words of the Act hinder him in the exercise of that
right since, because of his experience in 1997, he is afraid to vote lest it be disclosed how he voted.
There is therefore the need for "absolute' secrecy" of the ballot.
Under the provisions of the Act, when a person votes, he/she does so "secretly". His or her vote is
"communicated" to the relevant officials to whom it is directed at the time of counting or recounting.
The Act also requires care to be taken by the authorised officials in the counting or recounting of the
ballots, to ensure that the number on the back of the ballot is not seen, so as to prevent any linkage
between the number on the ballot and the counterfoil to which it relates.
In addition, everyone who works in a polling station is required to take an oath of secrecy.
While it is correct that in the case of Roberts v. Pinder mentioned earlier, the names of a few voters
appear in the judgment of the Election Court, that was necessary because of the egregious nature of
the conduct condemned in that judgment. The behaviour there complained of contravened the
express provisions of the Act and may have amounted to criminal conduct. As a matter of law, I do not
think there can be any confidentiality in criminality.
The learned Chief Justice said that even where a scrutiny takes place in Chambers as in Fountain v.
Smith (1971-76) 1 L.R.B. 387 as not only representatives of candidates but also officers from the
Parliamentary Commissioner's Office, may be present at the scrutiny even when it takes place in
chambers, the possibility of how a person voted being revealed "to an official of the State" exists.
Again that is speculation and seems to make an (end of page 18) unfavourable presumption against
the officials and others without any evidence to support it other than the instances mentioned by the

respondent and the judgment in Roberts v. Pinder's case.

The respondent's case in fact is based on aberrant behaviour in two instances over a period of almost
42 years since the impugned words were first made part of the electoral law of the Bahama Islands.
The respondent asked the Court to find, in effect, that it is possible that a voter's identity as well as
how that voter voted could be revealed because of the marking of the counterfoil. It has been said that
anything is possible; Courts however, do not make decisions even in civil cases on the basis of
possibilities; Courts make decisions either on a preponderance of probabilities, or because there is no
reasonable doubt, about the existence of relevant facts.
In the instant case, there were no facts on which a Court could reasonably find even a preponderance
of probability and the reasonable tribunal could have concluded, beyond reasonable doubt, that there
was any factual basis that what the respondent "feared" was in fact so.
Another effect of the learned Chief Justice's decision is that all or at least the majority of poll workers inclusive of the officials of the Parliamentary Commissioner and representatives of petitioners and
respondents to election petitions and Court officers - are not to be trusted to observe their oaths. As
indicated earlier, there was no evidence before the learned Chief Justice on which he could
reasonably have found such a proposition as that posited on behalf of the respondent to be well
founded.
I say that firstly, because I take judicial notice of the fact that while there was a comparatively large
number of election petitions filed following the 1982 and 1987 general elections, respectively, in none
of them was a scrutiny ordered. Secondly, the Act requires that before an election petition is brought
before the Election Court, the leave of a Justice of the Supreme Court is necessary with a
constitutional right of appeal to this Court exists from the grant or refusal of such leave. (end of page
19)
Thirdly, in the case of A D Hanna v. Sylvia Scriven, a justice of the Supreme Court granted leave to
Mr. Hanna to file an election petition. That order was appealed to this Court, which reversed the
Supreme Court's decision.
All of those checks and balances exist to protect the integrity of the vote by secret ballot. In my view,
no law, in and of itself, can prevent persons with bad motives from contravening it but such inability
and such contravention does not render the any such law unconstitutional.
In the interest of preserving the integrity of the voting process, I hold the firm view that the practice of
holding a scrutiny in Chambers is the only method presently open to the Judiciary to maintain the
concept of secrecy required by the Act and should be followed.
With regard to the respondent's argument that there should be "absolute secrecy" in the voting
process even at the risk of wholesale fraudulent conduct being perpetrated, I must say that in my
examination of the constitutional provisions in Chapter III of the Constitution, there is nothing in any of
the fundamental rights provisions - other than the prohibition of cruel and inhuman treatment - which
can be said to be cast in absolute terms. In my view, such absolute rights would be unworkable.
In simple terms, if any one person has the absolute right to freedom of expression, for example, then
it means that every other persons' similar right is destroyed or at least diminished to such an extent as
to be insignificant. Indeed Article 15 of the Constitution makes it clear that the fundamental rights of
"every person" in The Bahamas is subjected to the fundamental rights of every other person in The
Bahamas and to the public interest. That Article reads:
"15. Whereas every person in The Bahamas is entitled to the fundamental rights and freedoms of the
individual, that is to say, has the right, whatever his race, place of origin, political opinions, colour,
creed or sex, but subject to respect for the rights and freedoms of others and for the public interest, to
each and all of the following, namely (a) life, liberty, security of the person and the protection of the law; (end of page 20)
(b) freedom of conscience, of expression and of assembly and association; and

(c) protection for the privacy of his home and other property and from deprivation of property without
compensation,
the subsequent provisions of this chapter shall have effect for the purpose of affording protection to
the aforesaid rights and freedoms SUBJECT TO SUCH LIMITATIONS OF THAT PROTECTION AS
ARE CONTAINED IN THOSE PROVISIONS, BEING LIMITATIONS DESIGNED TO ENSURE THAT
THE ENJOYMENT OF THE SAID RIGHTS AND FREEDOMS BY ANY INDIVIDUAL DOES NOT
PREJUDICE THE RIGHTS AND FREEDOMS OF OTHERS OR THE PUBLIC INTEREST."(Emphasis
supplied)
From that provision and Article 23 excerpted above, it follows that the freedom of expression in Article
23 is subject to legal provisions which are "reasonably required in the interests of public order and
public morality", among other things, unless it can be shown that the impugned words or the marking
of the counterfoil under the authority of those words is shown not to be reasonably justifiable in a
democratic society.
Among the reasons advanced for the inclusion of the impugned words is the need to prevent and
detect fraud in an election.
It is difficult to understand how the detection of crime can be said to be unreasonable in a democratic
society built on the foundation of the rule of law.
Dr. Maynard was driven to say that if a person communicates with another in confidence and he fears
that the other person might disclose subsequently the confidential information imparted to him, that
would be an "interference" with the right to communicate which is forbidden by Article 23(1) of the
Constitution and that even if (my words) the impugned words were inserted in order to be able to
prevent or detect fraud, that was not reasonably justifiable in a democratic society.
In response to the suggestion that England was a democratic country and had had a similar provision
for years, Dr Maynard's comment was that it was not working in England nor is it working in The
Bahamas. (end of page 21)
Counsel's responses make it clear that this was an ill conceived action brought for reasons known
only to the respondent and his counsel, at a time when high visibility of the respondent's claim was
almost guaranteed because of the imminence of the constitutionally mandated general elections - as
the timing of the steps taken on behalf of the respondent demonstrates.
It is clear to me that the impugned words were not placed in the statute for any forbidden purpose but
in the interests of the public and of the "peace, order and good government" of The Bahamas and that
the provision is clearly reasonably justifiable in a democratic society.
Further, it is for the entire Bahamian electorate to decide what kind of democracy it wishes to have. If,
and when, the time arrives when the population of The Bahamas is sufficiently politically mature and
incorruptible to have "absolute secrecy" in voting then the law and or the Constitution may be
amended to include such a provision. Until then, this Court will fearlessly uphold the Constitution and
will not permit it to be debased by being bandied about when there is no cause of action under its
provisions - see e.g. Harrikssoon v. Attorney General of Trinidad and Tobago [1980] A.C. 265, [1979] 3
W.L.R. 62. At page 268, Lord Diplock said:
"...The notion that whenever there is a failure by an organ of government or a public authority or public
officer to comply with the law this necessarily entails the contravention of some human right or
fundamental freedom guaranteed to individuals by [Chapter III] of the Constitution is fallacious. The
right to apply to the High Court under [Article 28(1)] of the Constitution for redress when any human
right or fundamental freedom is or is likely to be contravened, is an important safeguard of those
rights and freedoms; BUT ITS VALUE WILL BE DIMINISHED IF IT IS ALLOWED TO BE MISUSED
AS A GENERAL SUBSTITUTE FOR THE NORMAL PROCEDURES FOR INVOKING JUDICIAL
CONTROL OF ADMINISTRATIVE ACTION. In an originating application to the [Supreme Court under
Article 28(1)], the mere allegation that a human right or fundamental freedom of the applicant has

been or is likely to be contravened is not of itself sufficient to entitle the applicant to invoke the
jurisdiction of the Court under the [subparagraph] if it is apparent that the allegation is frivolous or
vexatious or an abuse of the process of the Court as being made solely for the purpose of avoiding
the necessity of applying in the normal way for the appropriate judicial remedy for unlawful
administrative action which (end of page 22) involves no contravention of any human right or
fundamental freedom." (Emphasis supplied and Bahamian constitutional references inserted).
Since in this case there was no breach of Articles 16 to 27 of the Constitution, the procedure by which
these proceedings were brought under Article 28 was misconceived.
In this case, on the respondent's own affidavit, he had five years in which to bring an application to
vindicate his claims but nothing was done until after Parliament was dissolved and the general
elections were called. Then he claims that his constitutional and fundamental right to vote in absolute
secrecy was infringed by the Act but harks back to something that occurred in 1997 and a judgment
which was given in 1993(?). If ever there was a diminution in the value of the constitutional freedom
given by Article 28(1) of the Constitution, I think this case exemplifies it.
In summary then, I agreed that the appellant's appeal should be allowed because (1) there is no fundamental right to vote in any provision of the Constitution;
(2) there is no fundamental right to vote in "absolute secrecy";
(3) the right to vote and to vote by secret ballot is statutory;
(4) even if the right to vote is equated with the fundamental freedom of expression guaranteed by
Article 23(1) the impugned words are saved from constitutional infirmity by Article 23(2) since they are
necessary in the interest of public order and public morality and are reasonably justifiable in a
democratic society. (end of page 23)
For those reasons I agreed that the appellants' appeal should be allowed and the consequential
orders made by the learned Chief Justice set aside with no order as to costs.
Dated the 25th day of July AD, 2002.
Sawyer, P.
I concur and there is nothing that I wish to add.
Churaman, J.A.
I also concur.
Ganpatsingh, J.A.
I also concur.
Ibrahim, J.A.
I also concur.

Osadebay, J.A. (end of page 24)