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Sources of Bahamian Law

Posted by M. Margaret Gonsalves-Sabola | Sep 19, 2017 | 0 Comments

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Judges, attorneys, and other legal practitioners in The Bahamas look to several different sources of law when working on cases. This article briefly summarizes the principal sources of Bahamian law.

The Constitution

The Bahamas has a written Constitution. Article 2 of the Constitution declares that the Constitution is the supreme law of The Bahamas and if any other law is inconsistent with the Constitution, the Constitution will prevail and the other law shall, to the extent of the inconsistency, be void. The Articles of the Constitution address matters such as citizenship, the protection of fundamental rights and freedoms of the individual, the office of Governor General, the establishment and functioning of the three branches of government (namely the executive, the legislature and the judicature) and provisions relating to public administration.

Statutes and Legislation

In The Bahamas, Parliament is the principal maker of laws under powers conferred by the Constitution.  Statutes or Acts of Parliament are written laws passed by Parliament for the peace, order and good government of The Bahamas. In the eighteenth century, The Bahamas adopted a number of English statutes which became part of its laws. However, those English statutes have been amended, replaced and added to by the Parliament of The Bahamas which has enacted its own set of statutes and legislation that govern many different aspects of the law, from civil and commercial matters to administrative matters and criminal offenses. Quite often, an Act of Parliament may authorize a specific body to enact rules and regulations and make orders which have the force of law. These rules, regulations and orders are called subsidiary legislation and are intended to complement and be read with the applicable parent statute. Courts look to these statutes and subsidiary legislation for explicit guidance on the rights and obligations of government departments, businesses, private citizens and residents of The Bahamas. Judges must interpret the meaning of the statutory provisions and decide how to apply them to the facts of each case.

Common Law

The common law is a set of legal principles formulated and developed from the decisions of English judges over many centuries.  These principles are thought to be based on the customs and commonsense of the community and a decision made by a court in one case is regarded as binding on subsequent courts deciding similar facts. In many instances, these common law principles were modified and altered by Acts of the English Parliament.  In the eighteenth century, The Bahamas adopted the English common law to the extent that the English common law had not been altered by certain Acts of the English Parliament. Today, The Bahamas generally follows the English common law save in those cases where Bahamian law has been developed by Bahamian statutes and decisions of the Bahamian courts.

Court Orders, Rulings, and Judgments

Court orders, rulings, and judgments are different names for essentially the same thing – law made by judges who decide cases before them. This case law may be used by other judges for guidance when deciding later cases. Of course, the facts in every case are different, so judges consider whether individual case law should apply or not. Attorneys search for decided cases in which the facts and legal issues are similar to the cases they are working on and the decisions favor their clients, to convince judges of their client's position.

Case law may be binding or persuasive precedent. Binding precedent usually involves case law decided by a superior court to the court hearing the case and requires the court hearing the case to follow the decision reached by the previous court. For example, the Supreme Court must follow precedent set by the Court of Appeal and the Privy Council. Persuasive precedent means case law decided by a court equal to or lower than the court hearing the case or a court in another jurisdiction and decided on similar or analogous facts. The court hearing the case may follow the persuasive precedent but is not required to do so.

In The Bahamas, attorneys and judges consider Bahamian case law first. However, cases decided in the English courts are considered highly persuasive in deciding Bahamian cases where no local precedent exists.

Facing a legal dispute in the Bahamas? Consult an attorney familiar with Bahamian law to represent you. Learn more by visiting Gonsalves-Sabola Chambers online or call the office at +1 242 326 6400.

About the Author

M. Margaret Gonsalves-Sabola

M. Margaret Gonsalves-Sabola is a civil and commercial litigation attorney and an accredited civil and commercial mediator. Margaret has over 21 years' experience in legal practice in the United Kingdom, Jamaica and The Bahamas.

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