Wednesday, March 22, 2017

Brazil beef ban in The Bahamas

The Bahamas bans Brazil beef

Guardian Business Reporter

Consumers in The Bahamas are being warned not to eat any meat products imported from Brazil.

A precautionary ban has been placed on meat products, which include corned beef, being imported into the country from Brazil, effective immediately, according to Minister of Agriculture and Marine Resources V. Alfred Gray.

Speaking with Guardian Business yesterday Gray said, “We are asking those people who are purchasing corned beef and other beef products that have already gotten into our food system, to discard those products immediately until further notice.”

Shortly after Gray was contacted by Guardian Business, the Ministry of Agriculture and Marine Resources sent out a statement on the matter.

Parts of the statement read:

“The Ministry of Agriculture and Marine Resources is aware of the meat scandal unfolding in Brazil relative to food inspectors taking bribes to allow sales of rotten and salmonella-tainted meats. Blairo Maggi, Brazil's agriculture minister, advised that the government of Brazil has suspended exports from 21 meat-processing units.

“Until further notice, no permits for the importation of processed meat products from Brazil will be issued. This includes corned beef as well as other beef products and beef by-products.

“The Ministry of Agriculture and Marine Resources will continue to monitor this issue over the next 60 days and, should we be satisfied that imports from Brazil be resumed, it would be with the following proviso:

“Beef must be slaughtered and processed at an approved government abattoir and processing facility; a sanitary certificate should accompany all imports from Brazil; inspection of all batch containers must be done at the port of entry; an import permit must be sought by all importers from the relevant government agency; and a registry must be compiled of all importers of beef and beef products from Brazil.”

Regional neighbor Jamaica also announced yesterday an immediate import ban on corned beef from Brazil.

According to recent news reports, police investigations into Brazil’s meat industry led to the conclusion that companies BRF SA and JBS SA, along with dozens of smaller companies, were involved in a scandal that permitted the overlooking of condemned practices.

JBS is the world’s largest meat producer and BRF is the biggest poultry exporter. The companies have denied the allegations.

China reportedly suspended imports of all meat products from Brazil as a precautionary measure and the European Union suspended imports from four Brazilian meat-processing facilities.

The Nassau Guardian

March 22, 2017

Thursday, March 9, 2017

Dame Joan Sawyer concerns about the government statements on the general election and Baha Mar

Dear Editor,

Please forgive me if I have misunderstood two recent stories which appeared in your respective newspapers.

The first is that the prime minister is reported to have said that he was not going to call the general election “any time soon”. I am not sure on what that statement was based, because article 66(3) of the constitution is quite specific about the duration of any Parliament following a general election. That paragraph reads: “(3) Subject to the provisions of paragraph (4) of this article, Parliament, unless sooner dissolved, shall continue for five years from the date of its first sitting after any dissolution and shall then stand dissolved.”

If my memory is correct, I think the present Parliament first sat on May 23, 2012. That would mean that unless the prime minister advises the governor general to dissolve Parliament before that date, the present Parliament will “stand dissolved” on May 23, 2017, with the result that there would be no legitimate government to advise the governor general and there would not be a Senate because, according to article 43(1)(a), each Senate seat “becomes vacant upon the next dissolution of Parliament after he has been appointed”.

In such an event, it is doubtful that even the powers which the constitution gives to the Cabinet under articles 29, 66(4) and (5), in a situation where war or a state of emergency has been declared, can be exercised at all or by whom, since in these circumstances there would not be a declared state of emergency or war.

I am aware that in 1987 the Parliament did not actually hold its first sitting following the general election that year until some three months later, and that it was for that reason that the date of the general election for 1992 was some three months after five years would have expired from the holding of the 1987 general election. Clearly that is not the situation now.

Article 66(4), which is referred to in article 66(3), would only apply if The Bahamas is at war or under a declared state of emergency under article 29; as far as I am aware there has been no declaration that The Bahamas is at war or that a state of emergency exists, so that could not be the basis for extending the life of the present Parliament.

I am also aware that article 67(1) provides that: “(67) – (1) After every dissolution of Parliament the governor­ general shall issue writs for a general election of members of the House of Assembly returnable within ninety days from that dissolution.”

That provision seems to contemplate a situation where the Parliament is dissolved well before its session is due to end and the 90 days is the outside limit for the writs of election to be issued and returned. After all, in the very words of that paragraph, the governor general could only issue writs after Parliament is dissolved. In addition, regard will have to be taken of section 32 of the Parliamentary Elections Act (Ch. 7), as well as the fact that the present budget will expire on June 30, 2017; and one cannot help but wonder how they will then deal with the preparation, presentation and passage of the necessary bills for the budget for the upcoming fiscal year which starts on July 1.

Section 32 of the Parliamentary Elections Act provides for writs of election to issue and to be returnable within not less than 21 days nor more than 30 days – both of those time frames are within the 90 days contemplated by article 67 (1) of the constitution. The time line is now quite short unless it is intended to ignore the above mentioned constitutional and statutory provisions.

The second issue that arises from the stories in the newspapers is that there is a great deal of confusion in the minds of some members of the general public about whether in truth, and in fact, Baha Mar has been sold and to whom. Is it in fact true that the assets of Baha Mar have in fact become the property of the Export-Import Bank of China by virtue of a foreclosure under a debenture to that entity? If so, clearly the debenture should have been registered in the Registry of Records, which would then make it open to inspection by members of the public.

There is also confusion as to how the judgement in a publicly heard civil case (the Baha Mar compulsory liquidation case) could be so “sealed” that no one, other than perhaps the learned justice who heard it, as well as the learned attorney general (whose daughters and husband have business interests housed in the building) and maybe the lawyers for other parties to the case would be aware of what was in fact decided.

It must be remembered that article 20 paragraphs (8), (9) and (10) of the constitution apply to that case as they do to all other civil cases heard in the Supreme Court or any other court of competent jurisdiction of The Bahamas. Those paragraphs read: “(8) Any court or other adjudicating authority prescribed by law for the determination of the existence or extent of any civil right or obligation shall be established by law and shall be independent and impartial; and where proceedings for such a determination are instituted by any person before such a court or other adjudicating authority, the case shall be given a fair hearing within a reasonable time.

“(9) All proceedings instituted in any court for the determination of the existence or extent of any civil right or obligation, including the announcement of the decision of the court, shall be held in public.

“(10) Nothing in paragraph (9) of this article shall prevent the court from excluding from the proceedings persons other than the parties thereto and their legal representatives to such extent as the court –

“(a) may be empowered by law so to do and may consider necessary or expedient in circumstances where publicity would prejudice the interests of justice, or in interlocutory proceedings or in the interests of public morality, the welfare of persons under the age of eighteen years or the protection of the private lives of persons concerned in the proceedings;

“(b) may be empowered or required by law to do so in the interests of defense, public safety or public order; or

“(c) may be empowered or required to do so by the rules of court and practice existing immediately before 10 July 1973 or by any law made subsequently to the extent that it makes provision substantially to the same effect as provision contained in any such rules.”

Clearly there was no matter of defense or public safety or public order to cause the decision not to be made public. On the other hand, it may be argued that because Crown land and money from the Consolidated Fund was used to pay employees of Baha Mar (money that was said to be owed to China Construction company for the construction of the new road from the airport) that the interests of justice required the decision and the reasons for it to be made public, especially when it appears to reasonable persons that there may have been a conflict of interest on the part of the government’s main adviser, the learned attorney general, who has subsequently reported that there was a sale to a Hong Kong entity and then that the sale is not complete.

These were also not interlocutory proceedings nor were they proceedings concerning the welfare of persons under the age of 18 years, nor for the protection of the private lives of persons concerned in the proceedings.

Furthermore, in The Nassau Guardian of Monday, January 30, 2017, pages A25 and A27, there were notices of voluntary winding up by 15 companies with the words “Baha Mar” in their names. The notices were apparently issued by Edmund L. Rahming. If those 15 companies are subsidiaries of Baha Mar, it raises serious questions about the whole saga of the winding-up proceedings of Baha Mar because voluntary liquidation is normally only appropriate where the company is solvent, and the compulsory winding up of Baha Mar would only be justified if that company was insolvent. Are we to accept that those 15 subsidiaries are solvent while the parent company (if it is the parent company) is insolvent?

It was also reported that the prime minister has said that he has instructed the attorney general to make public the contents of the judgment of the court in the Baha Mar case. There are two issues which arise from that. Firstly, if the attorney general, as attorney general, can say when a judgment by a justice of the Supreme Court is to be made public, that raises the very thorny question as to whether the attorney general is controlling the courts.

Secondly, it raises the question as to whether the prime minister, through the agency of the attorney general, is controlling the courts.

Neither of those possibilities would be consistent with the constitutional requirement for the courts to be “independent and impartial”.

I sincerely hope and pray that the information in the newspapers to which I have referred above is not quite correct, for if it is, then the concept of the rule of law would be otiose in The Bahamas.


– Joan A. Sawyer

Source - The Nassau Guardian

Thursday, March 2, 2017

The Hawksbill Creek Agreement (HCA) is the finest Development Agreement in the world


Gilbert Morris
The Hawksbill Creek Agreement (HCA) is the finest Development Agreement in the world. I know the force of this statement, since I grew up under this agreement; wrote nearly all my undergraduate law papers on this agreement and wrote my first economics paper - again - on the HCA.

I understand that the government wants to facilitate economic growth in Freeport, and I believe this is their true noble desire.

However, the GB (Port Area) Incentive Act is absolutely the wrong way to go:


A. It is wrong in Constitutional terms as the devolution of Sovereign concessions under the Hawksbill Creek Agreement was not a benefit to or intended for the Port Authority. Rather, it was to enable and empower the Port to deliver benefits to the Licensees.

Everything about this Act offends that.

Moreover, given the constitutional prohibition on discrimination, (on the one hand), no minister of governments of the Bahamas can be empowered, constitutionally, to give a tax benefit to one citizen, which is denied to any other under the same or similar circumstances. On the other hand, for any minister of government's of the Bahamas to make a distinction between Licensee applicants for the tax benefits, would require so much bureaucratic engagement, not to mention time, as to destroy any possible or conceivable actual incentive.

B. It is inconsistent with both the letter and spirit of the agreement itself, because - again - all benefits -
in the central thesis and core purpose of the Agreement - were to accrue to the Licensees.

This is crucial because under our Constitution, no government of the Bahamas is empowered to alienate or pass on the assets of the Bahamian people to others without "value for money".

The cardinal - value for money - prospect and concept in the HCA remains: TO BENEFIT THE LICENSEES!

Therefore ANY action that places the Licensees at ANY disadvantage offends the Agreement and is unconstitutional.

C. The Incentive Act is anti-Incentive. Everywhere in the world where economies are growing, governments are eliminating red-tape.

In this case, the very people who are disadvantaged by the economic doldrums in Freeport, are hit again by a regressive, over-burdening anti-competitive approach - even if well-meaning - infused with many confusions, thus limiting options for operations and investments for existing Licensee businesses.

It is critical to note that entities like the Grand Bahama Port Authority and it's companies under the Hawksbill Creek Agreement carry no market-to-market value as an entity.

Given the loss of the deep seabed advantages or the likely more aggressive approaches to trade by the Trump administration, now more than ever, the Port's net present value or "intrinsic value" is ONLY as is defined in the Hawksbill Creek Agreement. There is no other means to give Freeport a value beyond a low grade benchmark pricing of its component parts.

The effect of this initiative therefore also makes investing in the Port area LESS ATTRACTIVE and worse reduces the value of the Port's assets at a time when other jurisdictions are investing in port facilities.

I appeal to the government to withdrawal this initiative absolutely and completely.


Saturday, February 11, 2017

Freetowns In The Bahamas

RE - A Brief History of the 'Freetowns' in New Providence and in Grand Bahama, Bahamas.



PREFACE - When you said something that was DUMB, my 9th Grade teacher at Eastern Senior School would say: "Don't let your IGNORANCE predominate where your INTELLIGENCE should assist". This pronouncement related to some of the DUMB comments I have seen posted here on Facebook, as they relate to the new FREETOWN Constituency. Personally to me, this sad because there are those Bahamians, who just do not know their history, or those that do not appreciate the value of the very rich history our Bahamaland. Hence my decision to share the facts about the Freetowns in The Bahamas.
Why I stated: Freetowns In the Bahamas’, well, just for the record, Freetowns are not unique to The Bahamas, as there are 17 places in the world that are named ‘Freetown’. Freetown In Africa, there is a place (the original) named Freetown, Sierra Leone. There are 3 places named Freetown in Liberia. There is one place named Freetown in Nigeria. The original Freetown, Sierra Leone was founded in 1787, by Great Britain as a settlement for ‘freed slaves’ who sided with the British during the American Revolutionary War and that arrived in the city from 1787.
Freetowns In the Americas (those mainly North America, Central America and The Caribbean ) - There are 7 places named Freetown in America. There is one place named Freetown in Jamaica. There is one place named Freetown in Belize. There is one place named Freetown in Antigua and Barbuda. There are 2 places named Freetown in Bahamas. All of the places called ‘Freetown’ in the Americas, they are believed to be historical communities that were established after their emancipation in August 1834, for 'freed slaves' when all slaves in the British Empire were emancipated. They were probably given the name by the British Colonials, after the original original Freetown, Sierra Leone.
Freetown In Bahamas. Now that I have established the historical factors behind the name FREETOWN, I now will address and contribute to the history of Freetowns in The Bahamas. So, appears that the FNM and UBP Parties is not a 'nationalist' parties... country first. They seem to be not really concerned with preservation of our Bahamaland history, as the UBP first named the Killanery constituency - after the lake, The PLP Party saw it fit rename Killarney constituency after the historical 'Gambier' township; that which just like the well-established 'Foxhill' constituency, ‘Bain & Grants Towns’ constituency, ‘Carmichael’ and 'Adelaide', all that are an integral part of our rich Bahamian history. Let me interject here; that in cases where possible that it is tradition that constituencies be names after ‘places of history’, for example historical churches in New Providence - St Barnabas, Mt Moriah, St Cecelia, and once others, as were, St Thomas More and St Agnes. Also edifice like the historical forts: Ft Montgua and Ft Charlotte in New Providence.
Now back to the history of Freetown in The Bahamas. These communities named above, all of which are historical townships that 'freed slaves' established after their emancipation in August 1834, when all slaves in the British Empire were emancipated. Including those 'freed slaves' living in The Bahamas, and those that escaped from 'Slavery in America'. Most 'black Bahamians' are direct descendants of these former African slaves. As noted above, in addition to 'Adelaide', 'Gambier', 'Foxhill', ‘Bain & Grants Towns’ there are also two known historical ‘Freetowns’, in the Bahamas. 
Bainstown, New Providence, The Bahamas
However, my research discovered that there are also to small settlements called 'Freetown', one in Eleuthera, this area is located on the southern (east-west) Deep Creek and one south in The Bight, Cat Island very little in known of these towns history. Let's focus on the historical ‘Freetowns’ in New Providence and Grand Bahama Islands respectively.
FREETOWN, NEW PROVIDENCE - The area between Mackey Street and Kemp Road, called 'Freetown' is also a part of this rich history of New Providence Island. For The Record, FREETOWN, New Providence, extended beyond Kemp Road, to John Evans Road just to the East of the new Shell Gas Station on Shirley Street. Freetown Lane - located between Lyon Road and John Evans Road - is still on the map. In fact, the Church of God of Prophecy on East Shirley Street; still gives its address location as Freetown. In addition to this, many prominent Bahamian Families originate out of the Freetown / Kemp Road Community.
The facts are, the Freetown Constituency was FIRST established in 1968 by the PLP Government a year later after being elected in January 1967. The Freetown constituency that grouped the ‘Out East’ black communities all together. The Anns Town / Freetown Community being bounded between Shirlea (west) John Evans Road / Kemp Road Area (east), Bar 20 Corner / White Road (south) and Bay Street (North), Mr. Simeon Bowe was the PLP MHA for Freetown in the 1968 election and he won the seat. Today, this ‘renaming’ is now only the reestablishment of the old Freetown Constituency.
Contrary to reports on Facebook, Freetown was never a part of the Montagu community, as Freetown did not extend beyond (John Evans Road) that is the Western boundary walls of Montagu Heights and Queens College west boundary. In the 1968 General Elections, there was both a Freetown constituency and there was a Montagu constituency. But for the last 3 general elections, the Freetown / Kemp Road communities were integrated into the Montagu constituency by The FNM Party, in this case, this will now be reversed for the 2012.
FREETOWN, GRAND BAHAMA - Just like New Providence, there was also a Freetown established in Grand Bahama. But this Freetown has nothing to do with ‘politics’. In 1836 the population of the entire island of Grand Bahama was recorded as 370; most of those people are presumed to have lived around West End. By 1861 the population had grown to 858, and was probably spread between West End, Eight Mile Rock and Freetown.
Rum Running West End
Records from West End, the oldest city on Grand Bahama Island, show that the population in 1836 was only about 370, many of whom abandoned the island for greater opportunities in Nassau. However, in 1861 people flocked to Grand Bahama because of an unexpected economic opportunity the American Civil War.
At the outbreak of the war, with the Confederacy of Southern States under a strict Union embargo, smugglers operating out of West End were able to command hefty prices from the South for goods such as cotton, sugar, and weapons. As soon as the war ended, the economic boom ended as well, but it established strong ties between The Bahamas and the United States that still exist today.
So there is the history of the 'Freetowns' in Nassau and in Grand Bahama. As the saying goes: ‘If you don't know where you came from, you surely don't know where you are headed'.
Written and Published by Monte A. Pratt - M.A.Pratt & Associates - Consulting Partners - Copyrights (C) 2017
Source: Bahamas Historical Society and - Photos: Facebook (copyrights)
From Monte A. Pratt - Facebook


Saturday, November 19, 2016

An economic and social review of The Bahamas

by Dr Kevin Alcena

As citizens of a democracy, we are often called upon to make on complex public issues. We express our decision indirectly by for leader who represent or support certain policies. Sometimes, Though less frequently, we express our directly by participating in two public referendum.

Historically, in a democracy the people choose the policies that govern them, or at least the representatives who formulate these policies. When this choice is absent, democracy dose not exist. A despotism, however benevolent, is not democracy.

Public finance, even more than any other branch of the Bahamas economic; suggests the idea of a purposive conduct of economic affairs. In public finance in the Bahamas it is particularly tempting to postulate a single subject and a coherent and objective set of values which guide economic activity.

Moreover, Public finance represents economic 'planning ',I. e. positive intervention, and not just an automatic mechanism as in the abstract economic in the Bahamas of harmony. Therefore the contradictions inherent in fiction of a single collective of and demand for taxation occasionally, regressive taxation we need in the Bahamas 'tax benefit. '

Reduce debt principal and hence interest payments; Provide an extended and flexible reschedule of interest payments; Provide new credit to finance department with precedence over existing loans.

Any one of these would modify the annual flows of real resources from debtors to creditors, flows that are too large and too inflexible. A solution to the debt issues in the must be reduce.we be forced to increase our reserves against the US dollars loans.

There is one important assumption of the principal of ability which is the key to an understanding of later developments.

Like the principal of interest it presupposes a correct distribution of income and property upon which the correct tax system for the Bahamas is imposed. Whether one arrive at recommendation of proportional or of progressive taxation, the tax determined in relation to VAT and property, which are accepted as given.

The general attitude which VAT is not good to increase it be big mistake.

In short, it is estimated that the government collected a substantial amount of money from VAT, while the Bahamian public is actually waiting on a report on the expenditure. We must be cognizant of the fact that we all have a contract with the government, and we have to ask ourselves the question, have they delivered on the contract.

Transparency and accountability is an inherited expectation that we are entitled to in the contract. The Bahamian people have zero tolerance for any form of unfettered power that is displayed without impunity.

Nevertheless, we must safeguard our sovereignty, and embrace solidarity in the global arena with one common goal in mind. Realizing that the Trump administration can possibly derail the true spirit of economic growth in the economic community. Realizing the neocon racist agenda that can effectively impact the Caribbean region.

We must be mindful of the fact that Obama made a comment that he is skeptically optimistic of Trump administration, so we should be equally suspicious of the process in this volatile global community.

We Bahamians, PLP, FNM and DNA must all come together in these uncertain times to protect our fragile industry from the new neocon global economic agenda.

From Dr. Kevin Alcena

Wednesday, November 16, 2016

There is no unity to return to ...Trump ran on dividing not uniting America


 By Gilbert Morris -

 Gilbert Morris's Profile Photo

In May of 2008, I warned anyone who would listen that as wonderfully gracious and intelligent as beautiful a soul as President Barack Obama was, he lacked a "killer instinct", which I find is an essential trait in any leader. I warned at each stage: when he visited the GOP 16 days after being in office BEFORE visiting his Democratic colleagues; the second stimulus; failure to slaughter the banks or prosecute Bush/Cheney/Rumsfeld/Powell/Rice.

When he gave the healthcare bill to Reed and Pelosi, I warned of "strategic cynicism". When the White House health conference was held, I explained it as an exhibition of the failure of power; even worse after he lost Ted Kennedy's seat and so his absolute Senate majority because he refused to go and campaign (as he did for Hilary), and on and on. I won't speak of my warnings about Obama's foreign policy team - Susan Rice and others, foolishly interfering with Putin!

For these warnings, many of my good friends - on these pages - gave me "down-the-road".

I WARN NOW AGAIN: Trump/Giuliani/Gingrich/Palin - for Jesus sake-/etc. cannot discipline Mexico or China or Europe. It's not that kind of world anymore. Trade is NOT the key issue for joblessness. America now has a "Crossroads economy", a sharing economy (because of technology) and a "gig" economy (again because of technology. It is the "Silk Road" of the global economy. Therefore GET THIS NOW: it's almost impossible for America to act in its economic interests alone. It's impact on the world is integrated. As such, promising people their jobs back is bollocks!

Also, more ominously, today, the threat of belligerence can produce a global crisis in which a tiny nation or a single person can bring a superpower to its knees. The bug used to unlock AMERICAN electronic systems by Russia was first secretly used against Iran by the Americans and got away from the Americans into Russian hands.

Also, treacherously, there is a reactionary religious element - just as there was a reactionary progressive element for Obama - that sails on a lunatic fringe in their views that will get many people killed in stupid conflicts based on yet stupider irrationales. The main characters of Trumps inner circle have no record of broad sustained success. They are all hucksters and hustlers; which is fine for oneself. But superpowers can't hustle.

These protests you see now are neither a good nor a benign thing. Mr Trump has made statements which suggests that now that he has the levers of power, he would use it to avenge his thin skinned feelings. There is a danger here so great as not to be overstated and Trump supporters are foolish to pretend otherwise.

I do not think that race is as big a factor as some have made it. Trump's segment of the white vote was almost even with Romney and he lost. So that means Blacks and Hispanics did not turn out; who can blame them as Trump spent his life abusing them and the campaign vilifying them and Hillary? She took them for granted, TWICE!

But just because the majority of Trump supporters are NOT racist does not mean he did not run a racist campaign. He did.

And that is why NOW, someone with wisdom and an eye for social history must create the basis of social accommodation in America - for "e pluribus unum" - because many fools have been inspired by Trump's foolish statements. And nations do not bear up well under "us versus them" scenarios. Word to the wise!

The problem is - and here is the rub - there is no unity to return to and Trump ran on dividing not uniting America.

From Gilbert Morris - Facebook

Tuesday, August 9, 2016

The Rule of Law and the Constitution Trumps Parliamentary Privilege in The Bahamas

Insight: A Simmering Constitutional Crisis Ready To Erupt

Frederick Smith QC says the separation of powers between executive and judiciary is being threatened by ‘capricious’ parliamentarians over the Save The Bays email row . . .

The judgement delivered by Justice Indra Charles in the Save The Bays email case last week is a watershed in the development of Bahamian Constitutional jurisprudence.

It is precedent setting and an historic judgement in Constitutional Law throughout the British Commonwealth.

The issues, the context in which they were raised and the current reaction by the Government, must give civil society in the Bahamas pause for careful reflection.

By mounting this case, the Plaintiffs - Save The Bays and Zachary Hampton Bacon III, the brother of Louis Bacon, one of my fellow directors - have made a great contribution to the continued development of the Rule of Law in the Bahamas for which they should be deservedly proud.

The fundamental issues

1 Do persons in the Bahamas have a constitutionally-protected right to privacy of their private email correspondence and financial information?

2 If so, did the Government, through Cabinet ministers Fred Mitchell and Jerome Fitzgerald, breach such rights inside and outside Parliament?

3 And if so, was this breach nonetheless protected by Parliamentary Privilege?

4 Does the Constitution of the Bahamas and the Rule of Law prevail in the governance of an independent British Commonwealth nation which has a written Constitution, or does Parliament under the guise of exercising Parliamentary Privilege, prevail?

5 Ultimately, is the Bahamas governed by Parliamentary Supremacy (as in England, which does not have a written constitution) or Constitutional Supremacy (as in the Bahamas, which does have a written Constitution)?

In determining the issues before the Court, a wide range of historical Constitutional principles and cases from throughout the United Kingdom and British Commonwealth were analysed and relied upon.

The ruling

The Court found that the Rule of Law and the Constitution “trumped” Parliamentary Privilege.

The Court held that Cabinet ministers and or Members of Parliament in the conduct of Parliamentary affairs and the Government in the guise of the Executive acting through Cabinet ministers inside and outside Parliament were not above the law.

The Supreme Court held that it had an exclusive jurisdiction to adjudicate on and supervise breaches of the Constitution by the Executive and the Legislature. It held that Parliament could not divest the Court of supervisory original jurisdiction and it was for the Court and not for Parliament to decide on the scope and application of Parliamentary Privilege.

The Court held that, in the exercise of such jurisdiction, it was paramount for the Judiciary to be independent and free from interference by the Executive and the Legislature.

The MPs reaction

Despite this judgement, the Government MPs continued to press the Parliamentary Committee on Privileges to continue contempt proceedings against Supreme Court Judge Indra Charles, Frederick Smith, QC, and Ferron Bethell (both trial Counsel to Save The Bays). Other MPs, such as Greg Moss and even the Speaker of the House are aghast. Some are even proclaiming that the judgement is unenforceable.

Parliament had resolved in May to refer them to the Committee to consider whether they should not be committed for contempt of the “High Court of Parliament”.

If the House Privileges Committee proceeds any further a Constitutional crisis (which is currently simmering because of such resolution) will erupt like a volcano and its lava will melt the delicate constitutional construct of the Separation of Powers doctrine and respect between the Supreme Court and Parliament.

Crossing the Rubicon

Once the idea of the Rule of Law evaporates the Bahamas will descend into the ‘Rule of Might is Right’, where capricious daily dictates of policy by ministers hold sway. It is a thin veil between a country ruled by political Might as opposed to Law. That is why the MPs that are taking such umbrage at this judgement should be more reflective and celebrate it, not criticise it.

It is under appeal. There is a stay in place. I urge them to respect the process. I suggest the MPs calm down. At the Court of Appeal, the Speaker can file an Amicus brief on behalf of all Members of the House if he wishes. The Bar Association can do likewise. Even Mr Moss can do so. This is an important case. Lambasting the Judge in and out of Parliament is not civilised conduct.

Does the Bahamas wish to continue to be a Constitutional democracy governed by the Rule of Law, or will ministers Mitchell and Fitzgerald take us across the Rubicon as Julius Caesar did in the last days of the Roman Republic?

What Constitutional rights did the Government breach?

The Court held that the actions of ministers Fitzgerald and Mitchell in Parliament were attributable to the “Government” or “Executive”; they having acted as Members of the Cabinet and not simply as MPs in abusing Save The Bays and Zachary Bacon III. Accordingly, the Government was held liable for the breaches of their Constitutional rights.

The Court found that it was Mr Fitzgerald and the Government that had breached Save The Bays’ rights and not Mr Mitchell.

The Court found that the Government acted in breach of Article 23 of the Constitution, which protected Save The Bays’ freedom of expression and privacy by obtaining, possessing, reviewing and subsequently making disclosures of their private and confidential documents and information.

The Court also found that the Government had breached Article 21 of the Constitution, which protected them from illegal search and seizure of their property without their consent or under the authority of any law.

What did the Court order?

As a result the Court made three important orders.

1 The grant of a “permanent injunction” against the Government that “prohibits the further release or publication of any information contained in the private and confidential documents” of Save The Bays and Mr Bacon.

2 The “permanent destruction and or deletion of all electronic files and or records as well as the destruction of the hard copies of all documents within 14 days” of Save The Bays’ and Mr Bacon’s documents.

3 The Government to pay “vindicatory damages” to Save The Bays and Mr Bacon in the sum of $150,000. This is the largest award ever made for such Constitutional damages in the history of Bahamian jurisprudence.

The Court held that, because a case had not being made out against Mr Mitchell, the Court would not order the Government to pay the costs of the action.

The Government appeals

On delivery of the judgement, the Government immediately gave notice of its intention to appeal this to the Court of Appeal. Any outcome from that appeal is likely to be appealed by either side to the Privy Council.

The Government also applied for a stay of execution of the judgement pending the appeal and Save The Bays did not object

The appeal to the Court of Appeal is likely to be heard within the next six months and an appeal to the Privy Council thereafter is likely to be heard within nine months.

This was a major victory for the Rule of Law and fundamental rights and freedoms in the Bahamas.

It also vindicates Save The Bays and its directors and employees, who were very much wronged by the Government in abusing their right to privacy inside and outside Parliament. You may recall the political circus in Parliament in March when Government ministers and MPs made spurious and unfounded accusations against Save The Bays and individual directors and employees

They were embarrassingly ridiculed, mocked and pilloried with allegations that they were not a legitimate environmental non-governmental organisation; that they were involved in money laundering; and that they were a political organisation bent on destabilising the Government of the Bahamas.

Putting the case in context

This judgement must be put in context. The unwarranted, gratuitous and vicious adversarial reaction by the Government against Save The Bays came as a result of a Supreme Court action launched in March by a number of the directors of Save The Bays along with Reverend C B Moss against Peter Nygard (a major political financial and funder of the governing Progressive Liberal Party (PLP) and Keod Smith for a dangerous hate and harassment campaign spanning years maintained by Messrs Nygard and Smith against them.

Why did the Government attack Save The Bays in Parliament for Peter Nygard?

The question remains: why did the Government savage and attack Save the Bays in Parliament when it had not sued the Government?

Its directors and Rev Moss had sued Peter Nygard and Keod Smith, not the Government.

On the contrary, the evidence was that Mr Nygard had maligned the Prime Minister. So, why was the Government spending the Bahamian taxpayers dollars to defend Messrs Nygard and Smith?

It is even stranger, given that to this day, neither Mr Nygard nor Mr Smith have filed a defence to the claim.

Mr Nygard’s political influence in the Bahamas is alarming and shocking. The fact that the Bahamas allows a non-citizen to hold such sway simply because he donates $5m or more to the election campaign of the now governing PLP party should cause all citizens of the Bahamas to pause and consider which direction they want the Government to take at this crossroads in the future of the Bahamas.

A mysterious pattern of behaviour

This continues a pattern of behaviour by the Government that remains mystifying - to say the least.

Each time Save The Bays or another environmental NGO such as ReEarth in the Blackbeard’s Cay dolphins case, or Save Guana Cay Reef at Baker’s Bay, or Bimini Blue Coalition, challenges a development on the basis that it is proceeding illegally, the Government rushes all the way to the Privy Council, each time spending the Bahamian taxpayers’ dollar to defend the developer instead of letting the developer spend its own money to defend itself.

Why is that? Why does the Government always defend unregulated development at the Bahamian taxpayers’ expense? What vested interest does the Government have in each development?

So, in this case, why was the Government holding brief for Mr Nygard and Mr Smith in Parliament against Save The Bays?

Why is the Government going to spend millions of taxpayers’ dollars to continue to seek to protect Mr Nygard and Mr Smith by appealing?

Why appeal the judgement?

To prove what? Does the Government really wish to win an appeal?

To boast internationally that the Government can unconstitutionally seize Save The Bays emails?

That the Government can unconstitutionally expose them in public?

That the Government cannot be held accountable because, by Parliamentary Privilege, MPs are above the organic law?

And to boast that the oldest Parliament in the New World has the power to jail a Judge and lawyers who take a case to court to protect Constitutional rights?

How internationally embarrassing will that be?

Banana Republic or Constitutional democracy?

Is the Bahamas to be regarded internationally as a Banana Republic? A rogue nation? A political pariah amongst states? A dictatorship governed by arbitrary and capricious ministerial dictate, swooning at Mr Nygard’s and every other developer’s altar of money?

This rape by the Government of Save The Bays’ right to privacy and public exposure of its private emails and financial information, coming in the wake of the disclosure of the Panama Papers, has already cast the Bahamas in an extremely negative and prejudicial light in the international financial services industry.

A score of anxious bankers have already met with and expressed concern to the Prime Minister and Minister of Financial Services, Hope Strachan.

What was in the emails?

And for what? What were the contents of the emails? Why was the Government making such a fuss about them? Why were the ministers so exercised? They were uncontroversial.

One contained a draft letter of complaint by Save The Bays to the Police about the Nygard and Smith hate campaign; the other contained a draft advertisement about Nygard Cay; another from the Grand Bahama Human Rights Association contained a draft press release about Mr Mitchell’s illegal immigration road blocks.

So what, pray tell, was so politically captivating and salacious about them? How did they convert into accusations of political destabilisation of the Government and money-laundering?

Why was the nation’s attention held hostage and transfixed in Parliament for days by ministers Mitchell and Fitzgerald painting a picture of alleged nefarious activities by Save The Bays on a canvas that did not exist?

If the actions of the Government had not been challenged and checked by this Court action, not only may the reputation of Save The Bays and its directors have been irreparably sullied and tarnished, but it also had the potential to cause the flight of much financial business and to detract from further legitimate investment.

The Government should celebrate this judgement

The Government should be proud of this judgement and celebrate it as a great day for the Rule of Law. It should not appeal it.

Parliament should end the simmering Constitutional crisis and withdraw its contempt resolution against the Judge and Counsel.

The judgment helps to promote the Bahamas as a stable democracy, where it is safe to do business and where people’s rights are protected by an “abiding respect for … the Rule of Law”, which is expressed in the Preamble to the Constitution.

The Government should divorce itself from Mr Nygard and Mr Smith.

A ray of constitutional hope

The Judgment demonstrates to the world that:

1 The Bahamas is a country that respects the Rule of Law;

2 The Judiciary is independent of the Executive and the Legislature;

3 Persons whose rights are abused in the Bahamas have recourse to independent Courts and effective redress;

4 The right to privacy of one’s private information is effectively protected in the Bahamas by the Constitution;

5 The Courts will vindicate and protect breaches of such rights.

Accordingly, the international financial services industry, which has confidence in the Bahamas as a legitimate jurisdiction within which to do business, can in the short term, be comforted in the protection of their confidential financial information by this judgement.

But not so if the Government appeals, wins an appeal, or jails a Judge and Counsel.

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August 8, 2016