Saturday, November 24, 2012

Constitutional reform - pt. 14... ...the need for a new Caribbean jurisprudence... ...Caribbean Judges should be encouraged to demonstrate flexibility in developing our constitutional jurisprudence in the Commonwealth Caribbean

Constitutional reform pt. 14

The constitution: Limitations in enforcement of Bill of Rights


By Alfred Sears


The fundamental rights guaranteed to us under the constitution contain a number of limitations which impede the effective enforcement of the Bill of Rights under Commonwealth Caribbean constitutions and demonstrate the need for a new Caribbean jurisprudence.

The first limitation is the existence of broad derogation clauses in these constitutions.  While most of the derogation clauses are fairly standard, however, in The Bahamas Constitution the derogation clauses to the protection from arbitrary search and entry are in the broadest terms excusing any action reasonably required, “in the interest of defense, public safety, public order, public morality, public health, town or country planning, the development or utilization of any other property in such manner as to promote the public benefit.”

As Professor Lloyd Barnett in the essay “The Present Position Regarding the Enforcement of Human Rights in the Commonwealth” (October 1980) 2 W.I.L.J. 97 cautions, these derogation clauses are “... all imprecise in nature, and leave the door open to unnecessary legislative encroachments.”

The second limitation in the enforcement of personal liberties under these constitutions involves the existence of saving clauses, which preserve existing written and unwritten law from invalidation because of inconsistency with provisions of the Bill of Rights provisions.

The former Chief Justice of The Bahamas Telford Georges, in an essay “The Scope and Limitations of the State Machinery”, Int’l Comm’n of Jurists and Organization of Commonwealth Caribbean Bar Association, Human Rights and Development (1978), speaking of a similar clause in the constitution of the Republic of Trinidad and Tobago, argues that such a clause “... considerably limits the scope of the machinery of judicial review as a method of enforcement of the rights apparently enshrined in the constitution.  The judicial view... is that the constitutions create no new rights.  They merely preserve existing rights.”

The case of Re Thornhill illustrates how rights stated in a Bill of Rights provision in the constitution of Trinidad and Tobago was weakened by a pre-existing common law rule.  Thornhill, who had been arrested on multiple charges, alleged that the police had denied him the right to communicate with the lawyer of his choice.  The pre-republican constitution of Trinidad and Tobago, Section 2 (2) (ii), stated that no act of Parliament should deprive a person who has been arrested or detained of the right to retain and instruct without delay a legal adviser of his or her choice and to hold communication with him.  Therefore, the defendant asked the Supreme Court of Trinidad and Tobago to declare, inter alia, that the police had contravened his constitutional right to legal counsel immediately after arrest.

The attorney general argued that there was no right to counsel at common law therefore it did not exist under the constitution, since existing law had been preserved and could not be invalidated even if inconsistent with the constitution.

Justice Telford Georges, then the chief justice of Trinidad and Tobago and the trial judge, rejected this view and stated: “I hold that the right now exists because the constitution has proclaimed that it has always existed here and that it should continue to exist.”

The learned judge reasoned that the phrase “without delay” must not mean at the convenience of the investigators or at the stage where definable rights could be won or lost, but rather it “... is a right which arises immediately after arrest and that the right to exercise the right should be afforded without delay.”

The High Court of Trinidad and Tobago rejected this argument and concluded that the Bill of Rights was not intended to enlarge that body of rights which existed prior to the constitution.  However, the principal judgment of the High Court was based on another ground.  The court held that the police are not law servants of the state and as such they act independently; therefore, their actions could not be the basis for recovery for infringement, abrogation or abridgment of a fundamental right.

This decision by the High Court of Trinidad and Tobago elicited widespread criticism from legal commentators in the Caribbean.  Dr. Francis Alexis, for example in the essay “After Thornhill: Does Anything Remain of the Bill of Rights?”, West Indian Law Journal, October 1977, argued that this decision by the High Court was “ ... a neat illustration of the dangerous cul-de-sac towards which the courts can be impelled by holding fast to the singularly unfortunate doctrine that the Bill of Rights did not create any right where before there was none.”

Regarding the issue of whether the police are public servants or independent agents, Alexis pointed out that, unlike in England where the responsibility for financing the different police services is divided between the central government and local police authorities, in the Caribbean the financing, maintenance and control of the police services is exclusively by central government, notwithstanding public and police service commissions.  Alexis concluded that: “Perhaps the ordinary individual’s most frequent contact with the state administration is that with the police ... If, therefore, the police are excluded from the ambit of the Bill of Rights one may suggest .... that the Court of Appeal in Thornhill said an obituary on the Bill of Rights.”

However, this dire prediction was not realized, as the Privy Council reversed the Trinidadian Court of Appeal and held that an arrested or detained person has a right to consult counsel without delay after arrest or detention even while being in police custody, thereby affirming the judgment of Georges at the first instance.

The net effect of the saving clauses in Caribbean constitutions has been to weaken and create ambiguity about fundamental rights stated with apparent clarity in the constitutions; thus, undermining the clear intent of the framers of the constitutions of these newly independent countries of the Commonwealth Caribbean.

 

A further limitation

The third limitation in the enforcement of the Bills of Rights concerns the common law rules of construction often applied by the courts in constitutional interpretation which is based on notions derived from the British doctrine of parliamentary supremacy.  Sir Leonard Knowles, former chief justice of The Bahamas, in regard to the rules of construction applied to constitutional interpretation in the Commonwealth Caribbean, quoted Lord Diplock, who in Hinds v. The Queen (1976) 2 W.I.R. 372 stated that: “To seek to apply to constitutional instruments the canons of construction applicable to ordinary legislation in the fields of substantive criminal or civil law would, in their lordships’ view, be misleading ... there can be discerned in all those constitutions which have their origin in an act of the Imperial Parliament at Westminster or an order in council, a common pattern of style of draftsmanship which may conveniently be described as the Westminster model.”

The Privy Council in Minister of Home Affairs v. Fisher (1979) 3 All E. reiterated this principle R. 21.  At issue here was a provision of the Bermuda constitution which permitted legislative derogation from the right of freedom of movement of persons who did not “belong to Bermuda”.’

The Privy Council held that in construing the constitutional definition of “persons who belong to Bermuda”, the common law presumption that the word “child” excludes illegitimate children should not be followed.

Lord Wilberforce cautioned that a constitution should not be interpreted like an act of Parliament, but that it requires “principles of interpretation of its own suitable to its character as already described, without necessary acceptance of all of the presumptions that are relevant to legislation of private law”.

In spite of the Privy Council’s apparently clear position that a constitution should not be interpreted like ordinary legislation, Lloyd Barnett, using the Nasralla case as an example, observes that in the Caribbean “frequently in constitutional cases judges state the principle of construction in a form which is indistinguishable from that utilized in the interpretation of ordinary statutes... the approach to constitutional interpretation has been largely dominated by English techniques of statutory interpretation”.

 

The American context

It is instructive to contrast this practice of constitutional interpretation in the Caribbean with constitutional practice in the United States.  In U.S. constitutional jurisprudence the U.S. Supreme Court is the ultimate guardian of the freedoms and rights of the individual, facilitated through the power of judicial review established by the case Marbury v. Madison (1803) 5 U.S. 137.

Professor Henry M. Hart in the essay “The Power of Congress to Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic” 66 Harv. L. Rev. (1953) 1362, argues that protection of the U.S. Bill of Rights is an essential function of the court the jurisdiction of which cannot be destroyed by Congress.

Using the political process rationale developed by Justice Stone, he contends that the Supreme Court  is the guardian of the freedoms of the individual and the protection of minorities against the state and majoritarianism.  However, Professor Derrick A. Bell, Jr. in  Race, Racism and American Law (2nd ed. 1980) contends that the U.S. Supreme Court has not been consistent in maintaining this “essential function” with respect to the fundamental rights of African-American citizens, as illustrated by the cases Plessy v. Ferguson (1896) 163 U.S. 537, Dred Scott v. Sandford (1857) 60 U.S. 393 and the Slaughter-House (1873) 83 U.S. 36 cases.

Bell posits that the court’s role has been paradoxical in this area, swinging from extreme conservatism during the Post Civil War Reconstruction era to healthy activism during the civil rights era, the latter illustrated by decisions such as Brown v. Board of Education (1954) 347 U.S. 483, Loving v. Virginia (1967) 388 U.S. 1, and Katzenbach v. Morgan (1966) 384 U.S. 641.  Bell concludes that the degree of progress that African-Americans have made away from slavery and towards equality has depended on whether allowing blacks more or less opportunity best served the interests and aims of white society.

However, the U.S. Supreme Court, in an equality revolution begun by the Warren Court, established a dual standard of constitutional review, rational standard and the strict scrutiny standard and has readily found that all disadvantaging classifications resting on race and ethnicity are suspect and violate the equal protection clause of the Fourteenth Amendment, treating discrimination based on national origin the same as discrimination against African-Americans in such cases as Yick Woo v. Hopkins, Hernandez v. Texas and Trimble v. Gordon.

Justice Black, in Korematsu v. United States (1944) 323 U.S. 214, stated that the court in such situations will use a strict scrutiny standard of judicial review and not the rational basis standard normally applied to legislation: “All legal restrictions which curtail the civil rights of a single racial group are immediately suspect.  It is to say that courts must subject them to the most rigid scrutiny.  Pressing public necessity may sometimes justify the existence of such restrictions, racial antagonism never will.

Thus, the court has outlawed invidious group differentiation which is irrelevant to a person’s capabilities and contributions.  The court, in the case Plyler v. Doe (1982) 457 U.S. 202 also invalidated a Texas statute permitting local school boards to deny free education to school-aged children of illegal aliens as violating the equal protection clause of the Fourteenth Amendment.

The U.S. Supreme Court has also used the Due Process Clause of the Fourteenth Amendment to extend individual liberties.  In Griswold Justice Douglas, using a penumbra theory, held that the right of privacy, though not specifically stated in the Bill of Rights, is nevertheless protected against unnecessarily broad state regulation.  He posited that some of the explicit provisions of the Bill of Rights created a zone of privacy.  He concluded that the right of married persons to use contraceptives fell within this penumbra.

In Roe v. Wade (1973) 410 U.S. 133, Justice Blackman held that this right of privacy includes a pregnant woman’s control over her own body and that her right to abortion was as an aspect of the right of privacy.   Professor Lung-Chu Chen in the essay “Institutions Specialized to the Protection of Human Rights in the United States” 1 N.Y.L. Sch., Human Rights Annual 27 (1983), argues that the flexible, contextual approach of the U.S. Supreme Court in constitutional interpretation has resulted in more human rights protection for more people in more areas, extending to all important value sectors.  Caribbean Judges should be encouraged to demonstrate similar flexibility in developing our constitutional jurisprudence in the Commonwealth Caribbean.

 

• Alfred Sears is an attorney, a former member of Parliament and a former attorney general of The Bahamas.

November 22, 2012

thenassauguardian


Constitutional Reform - pt. 13... ...I urge that the Constitutional Review Commission recommend the removal of derogation clause 4 (e) from Article 26 of the Constitution ...in order to affirm the constitutional norm of non-discrimination ...regularize and tax the Bahamian community gaming industry ...and open casino gaming to Bahamian ownership, management ...and patronage

Thursday, November 22, 2012

The Rt. Rev'd Laish Zane Boyd on the subject of the proposed legalisation of the “numbers business” - (web shop activities) - in The Bahamas... and the upcoming gambling referendum

Anglican Minister Has Say On Gambling Legislation





A pastoral letter to the Anglican family and the wider community on the subject of the proposed legalisation of the “numbers business” in The Bahamas.


By REV LAISH BOYD, SR


DEAR brothers and sisters of the Anglican Family and wider community, I wish to address you on the subject of the proposed referendum on the legalisation of the “numbers business” in the Bahamas.

I wish to provide you with some information and also encourage broad discussion. This will aid you in your decision making.

The issue

The issue is the decision of the government to hold a referendum so that the people can decide on whether or not there should be the expansion of gambling in the country. We understand this to mean the legalisation of the local numbers business (web shop activities) but not a provision for a national lottery (this statement was issued before Prime Minister Christie added the national lottery to the referendum). The Progressive Liberal Party promised a referendum in its pre-general election Charter for Governance. The Free National Movement, when it was the government, had also indicated that it would resolve the self-same question by way of a referendum.

The context

In 1959, the government of the Bahamas made explicit provision to legalise casino gambling in the country.

The decision was made for economic reasons focused on the facilitation of the expansion of tourism. The general public was not consulted.

Since 1959, successive governments have increased the number of casino operations. Gambling is a key component of our tourism product and is also at the heart of economic activities in the country.

The country as a whole was tacitly brought into the economic reality of casinos and, thereby, legalised gambling, without paying attention to the moral argument. Few church officials have ever suggested that their members avoid employment in casino-related establishments.

There have arisen, from time to time, protests against the denial of the right of Bahamians to participate in casino gambling. These arguments usually cite the provision of the Constitution against discrimination. The government’s official reason for the denial was the desire to protect the local citizens and residents in light of the generally acknowledged negative impact of the Hobby Horse Race Track which was a thriving entity at the time.

The illegal numbers business has taken root over the past century. We grew up knowing about the place of thriving establishments that were a staple part of the Bahamian landscape and diet. The numbers business has expanded significantly over the past decade, with the introduction of gambling via the web shops: same concept, new packaging. Although verifiable data is not available, there can be no doubt that a significant number of Bahamians engage in these activities which are regulated and controlled solely by the operators of the web shops. Persons in the industry have said informally that there could be 150-200,000 web accounts in existence in the various web shop companies combined in the country.

Given the technological basis of the web shop operations, the ability of the police to prevent or control such operations is minute to negligible.

Both major political parties publicly announced their intention to hold a referendum on the future of the web shop operations. The reasoning behind this policy decision was the desire to bring some regulation and control to the present “industry”, coupled with economics – as was the case in 1959.

Both major political parties appear to be determined to remove these activities from the criminal arena. Under our existing law operators of gambling houses and persons who patronise such establishments are breaking the law.

We note that the number of “web shops” has increased tremendously all over the Bahamas since the time of the last surge of national discussion in 2009-2010. In just those 2-3 short years the increase in these locations has been nothing short of phenomenal. Anyone who travels the islands of the Bahamas can attest to this.

The reasons for this are four-fold:

• The government continues to be unable or unwilling to enforce the existing law

• The government continues to give licenses for web shops knowing that the principal function of these establishments is – by far – not providing computer caf� facilities for those who have no computer of their own, or for children to do homework after school

• Sheer supply and demand. The market forces have indicated and dictated expansion. Enough persons want to do it to be able to sustain an increase in the number of locations. There are even roving “customer-service agents” with hand-held devices who come to where you are to do business.

• The freedom enjoyed by the companies involved in an industry that is against the law. They advertise in the media, they have banded together into an association, they are touting their contribution to society (number of employees, salaries paid, NIB and other benefits paid, all adding to the economy – not to mention their contributions to sports, charitable, church and community development pursuits). They have even indicated that they are prepared to spend more than $1 million on a marketing campaign to ensure a favourable referendum result.

Conclusion

The whole matter has really gotten quite out of hand and, some will argue, is too big for even the police to reign in. Unless the government is prepared to simply shut down these establishments “cold turkey” – which it seems to be unprepared or unwilling to do – then the government has no other choice than to attempt to regulate and tax the existing industry. The Prime Minister indicated that, if the result of the referendum did not favour the decriminalising of the numbers business, the government would have no other choice than to shut down these establishments. This must be taken as the government’s assertion that these establishments can simply be “shut down.”

A referendum, on any issue provides the citizens with an opportunity to participate in the formulation of policy. While there may be cause for some to suspect the motive behind the use of the referendum mechanism, the right of the citizens to be consulted is an important aspect of genuine democracy. Also, one has to respect the fact that some issues are so significant, and represent such a major shift in policy, norms or behaviour, that it might be best if governments seek the comment of a majority of citizens before venturing into such a new arena.

Adequate opportunity must be provided for persons to examine the issues before they are invited to express their ‘choice’ by way of the ballot box. The church must be an agency that encourages dialogue and that creates a forum for information and wholesome discussion on this and other issues, since a part of our stewardship is being a good citizen in the country where God has placed us. Our duty to God involves our participation in national life. Remember the Biblical injunction: “Render to Caesar the things that are Caesar’s, and to God the things that are God’s.” This calls Christians to play their part in national life and in dealing with national issues.

We must be certain that persons who make a choice on this subject do so from an informed position, ie, knowing what motivation is informing their choice.

What is gambling?

Gambling is a broad subject area encompassing games or activities involving some risk with the potential for granting an advantage to the person or persons who “play” or “are involved”. Some persons condemn all forms of this activity. There are others who tolerate them in varying degrees. For example, many persons have no difficulty with raffles and door prizes, or with a game of bingo. These are isolated and individual events which are usually held for fundraising and charitable causes. Individuals will buy a raffle ticket, or a door prize ticket at an event, or play a game of bingo and give no second thought to it; they see it as harmless, as I believe these involvements to be.

Edward Rodgers writes: “A small stake in a raffle for a worthy cause inflicts no conceivable hardship on the purchaser of the ticket and is motivated more by generous desire to help than by anticipatory greed.” This reasoning led the 108th session of our Diocesan Synod, meeting in October, 2008, to allow raffles in our Anglican Schools as a means of fundraising. This came after many years of a moratorium on the holding of raffles in the diocese that was put in place during the time of the late Bishop Michael Eldon. Recently, the 111th Session of Synod passed another resolution to lift that moratorium entirely and to allow parishes also to hold raffles for fundraising purposes.

Kindly note that these two decisions have nothing to with, and are completely unrelated to, the current discussion on the expansion of legal opportunities for gambling. They would have occurred even if that discussion did not take place or was not taking place.

The Anglican Church has no difficulty with raffles, door prizes or bingo.

The numbers business is a completely different thing. It is a 24-hour-a-day, 7-day-a-week enterprise in which persons engage and which is definitely habit-forming and downright addictive for a majority of its participants. It is a system which is designed to exploit the participants so that the few will benefit at the expense of the many. The modern day reality is that this form of gambling is easily accessible to all via the internet, via numerous web shops and via other means. Persons can play with very little money. This easy access leads to widespread use by persons of all ages, classes, backgrounds and socio-economic standings.

November 21, 2012

Wednesday, November 21, 2012

Christie’s failure of leadership is not solely one of chronic incompetence... ...More broadly and egregiously it is an outsized and shameful failure to keep faith with the Bahamian people ...and the demands of social justice... ...No posturing, play-acting or preening by Perry Christie can obscure this sad reality

Flip-flopping Christie flips and flops – again!

Front Porch


By Simon


In the embarrassing climb-down that is his most recent flip-flop on gambling, the prime minister desperately sought to make a virtue out of his incompetence and bungling, and that his government likely lacked the legal authority to proceed with a vote that it probably would have lost: “I am a prime minister who listens.  And in listening to the still evolving public discourse on the forthcoming referendum it has become clear to me that more time is needed before the Bahamian people are called upon to vote.

“I am supported in this view by the leadership of a broad cross-section of the national community with whom I have been consulting over the past few days.”

That Perry Christie believes that voters are gullible enough to believe such balderdash speaks to his contempt for the common sense of those who see through the farce he is attempting to perpetuate in this whole numbers business.  His attempt to describe his latest flip-flop as listening must be an inside joke.

There are reports of private polling to gauge whether the December 3 poll should have been postponed.  One wonders whether this figured into its postponement.

Christie may have been listening, but was it mostly to narrow interests who may funnel campaign contributions to his party, as well as those who gave him stunningly poor advice?

Confusing

If he had indeed listened carefully to a broader cross-section of voices earlier rather than to the drumbeat of his puffed-up hubris and self-serving backers he would not be in this utterly confusing mess of which he is the lead author, though his Cabinet bears collective responsibility for the debacle.

Despite Christie’s involvement in public life for nearly four decades this has been one of the most disastrous performances – at the nexus of policy and politics – by any prime minister in an independent Bahamas.

Christie’s newfound listening posture is not the sign of able leadership that he pretends.  Instead, by failing to adequately consult beforehand, he failed some of the most basic tests of leadership.

His so-called listening reminds one of a toddler who, after burning his finger on the stove for the umpteenth time, stops for the moment, then brags to his mom about how well he’s listening to her advice to stay away from the stove.

There is a back story to this debacle to which Christie alluded in Parliament.  Rattled by Long Island MP Loretta Butler Turner in the House, Christie recited the PLP’s three election wins from the Elizabeth by-election, nearly three years ago, to that of North Abaco, as if to say, how dear you challenge me.

That his party failed to win a majority of the popular vote on May 7 – in part because of his leadership deficits and previous failures as prime minister – has not engendered in him any humility.  Christie’s arrogance is surreal.

It’s the same cloud nine he has been on since May 7, indicative of his narcissistic claim of divine provenance for his prime ministership:  “... But God has spoken.  God has made me the prime minister of the Commonwealth of The Bahamas.”

Often, narcissism’s fraternal twin is megalomania, a “condition characterized by delusional fantasies of ... omnipotence”, and “by an inflated sense of self-esteem and overestimation by persons of their powers.”

Debacle

Christie’s web cafe debacle was conceived in hubris and megalomania, nurtured in sheer incompetence and foisted on the Bahamian people with stunning miscalculation.  His cloud nine has turned to stormy weather.

Fresh off election wins, Christie miscalculated that he would rush through a vote that his party would win giving it political cover to legalize certain enterprises that might prove generous to his party in perpetuity.  Talk of neutrality was always a ruse.  His gambit, thus far, has backfired.

Still, Christie’s hubris was only outmatched by staggering incompetence.  To refresh our memories, let’s recall this government’s comedy of errors:

The PLP’s election charter promised a referendum on a national lottery and gambling.  The government flip-flopped by deciding to hold a referendum solely on web cafes, supposedly on the advice of UK consultants who apparently suggested that a national lottery was not commercially feasible, even though they have admitted to not conducting a more thorough study.

Remember also that Christie said the consultants were preparing a report, which now turns out to be just a few letters.  The breakneck flip-flopping continued: Christie then advised there would be a poll instead of a referendum.

Now, in the latest whip-lashing flip-flop, we are told that the referendum is back on and will include a question on a national lottery, the very lottery that was supposedly commercially non-feasible based on a report which seemingly never existed.  What a tangled web cafe weave.

So staggeringly incompetent has Christie been in this numbers affair, one wonders whether certain colleagues left him to his own devices, so that he might flail, flounder and flip-flop.  The prime minister’s attempt to extricate himself from this entanglement in his most recent House communication on gambling also failed.

Butler-Turner was having none of Christie’s flip-flopping, crying shame on the whole sham, taking Christie’s nerve while taking on a government which seemed dazed as she mocked its breath-taking hypocrisy and muddled thinking.

In a weak defense, Christie boasted of his numbers in the chamber, as if he was rallying his troops in the face of the Long Island MP’s singular offensive.  Curiously, despite the largest Cabinet since internal self-government in 1964, his government’s performance on the gambling issue has been a collective disaster.

Nevertheless, Christie’s leading and vociferous role in this policy and political mess has likely encouraged those within his Cabinet who would rather replace him sooner rather than later.

Bluster

Speaking of crocodile tears, as Christie did last week, an often telling sign that he is under the gun and/or on the losing side of an argument is that he becomes even more voluble and impassioned as he attempts to obfuscate certain facts with performance art, bluster, and often feigned hurt or sincerity, depending on the dramatic persona required.

He did so in the House, referring to those who are too stupid and blind to see certain facts, and those who are being “transparently opportunistic”.  Given Christie’s tin-ear, blinders, wholesale incompetence, collapsed credibility, dissembling and spectacularly opportunistic flip-flopping on this issue, his was not the best choice of language.

While Christie’s performance in the House last week may not be good enough for an Academy Award, it merits a nomination for a Daytime Emmy.  Unfortunately, his performance then and during the course of the current debate will not win him an award for excellence in public policy or good governance.

The very day that Christie was performing his latest flip-flop in the House, Fr. Jimmy Palacious lambasted the government’s web cafe intentions.  He lamented that this government would seek to push through a poll on gambling while women are constitutionally still unequal to men.

This is the crying shame of Perry Christie’s PLP, demonstrably quicker in seeking to secure the greed of private interests rather than the public good of the mass of Bahamians, and the equality of women.

Christie’s failure of leadership is not solely one of chronic incompetence.  More broadly and egregiously it is an outsized and shameful failure to keep faith with the Bahamian people and the demands of social justice.  No posturing, play-acting or preening by Perry Christie can obscure this sad reality.

November 20, 2012

thenassauguardian


frontporchguardian@gmail.com

www.bahamapundit.com>

Saturday, November 17, 2012

Constitutional Reform - pt. 13... ...I urge that the Constitutional Review Commission recommend the removal of derogation clause 4 (e) from Article 26 of the Constitution ...in order to affirm the constitutional norm of non-discrimination ...regularize and tax the Bahamian community gaming industry ...and open casino gaming to Bahamian ownership, management ...and patronage

Constitutional Reform pt. 13

The Constitution: Gaming and discrimination


BY ALFRED SEARS


Since the early 1960s full-time casino gambling has been and remains the anchor attraction of the major touristic resorts in The Bahamas, without any major opposition from the Bahamian society either on moral or social grounds.  However, under the Lotteries and Gaming Act, 1969, Bahamian citizens, permanent residents, persons ordinarily resident in The Bahamas or persons in the employment of the government of The Bahamas, except with a special permit, are prohibited from taking part in any gaming and casinos in The Bahamas.  While there is a complete ban on Bahamians, visitors are invited to The Bahamas to patronize casinos.

Casino operators in The Bahamas, all of whom are foreign investors, receive each year a promotional cash contribution from the government, pursuant to their respective heads of agreements, to promote their resorts in which casino gaming is a core attraction.  As part of the public policy of The Bahamas, the government grants licenses to casinos, receives taxes of approximately $15 million annually from casinos and allows Bahamians to participate, through employment, in gaming activities in casinos, as croupiers, pit bosses and supervisors on behalf of the casinos.

On the other hand, to participate in gaming in The Bahamas, Bahamians must patronize illegal web shop operations, owned and operated by Bahamian entrepreneurs who risk, along with their patrons, arrest and prosecution.  However, in spite of this risk, the local web shops have proliferated throughout The Bahamas with thousands of Bahamian patrons.

The root of this discriminatory treatment of Bahamians and permanent residents is found in Article 26 (1) of the Constitution which declares that no law shall make any provision which is discriminatory either in itself or in its effect.  However, under the derogation clause of Article 26 (4) (e) it is stated that this article shall not apply to any law so far as that law makes provision “for authorizing the granting of licenses or certificates permitting the conduct of a lottery, the keeping of a gaming house or the carrying on of gambling in any of its forms subject to conditions which impose upon persons who are citizens of The Bahamas disabilities or restrictions to which other persons are not made subject”.

Therefore, the Constitution allows for disabilities or restrictions, in the area of gaming, against Bahamian citizens and permanent residents which disabilities and restrictions are not applicable to visitors and foreign investors.  The question is whether this blanket prohibition of Bahamians from gaming can be justified, on the grounds of public policy and constitutional principle, given the current support of and subsidy by the government of foreign-operated casino gaming in The Bahamas.

Prime Minister Perry Christie announced in the House of Assembly on October 31, 2012 that there will be a referendum on December 3, 2012 on one question: Do you support the legalization of web shops?  The prime minister disclosed that the question of a national lottery will not be included which, in the opinion of the London-based consultants, were not commercially viable and that the question of removing the prohibition on casino gambling for Bahamians will not be a part of the referendum.  The prime minister pledged to shut down web shops and enforce the gaming laws if there were to be a majority “no” vote.  If a majority of the votes in the referendum were to be in the affirmative, then the Gaming Board will issue licenses to those persons who meet a strict set of criteria, including possessing the necessary experience, integrity and expertise, as well as possessing the necessary financial resources and having organizational capacity and internal controls needed to operate in an efficient, responsible and transparent manner.  According to the prime minister, legalized web shops will pay a licensing fee of at least $1 million and a performance bond, annual taxes based on their revenue, contribute to the cost of implementing the new laws and regulations, create and maintain programs to protect gamblers from addiction and assist with the cost of setting up a system to rehabilitate gambling addicts.

According to The Nassau Guardian, as reported by Taneka Thompson on November 6, 2012 of an interview with Christie on the sidelines of a swearing in ceremony for North Abaco MP Renardo Curry as a parliamentary secretary, the prime minister conceded that while a referendum is not needed to regulate the gaming sector, his government will be conducting a referendum to glean public opinion on the issue, in the following quote:  “...Because there is nothing to do with amending the Constitution; this is not a constitutional referendum... I’m advised legally that all of the prerequisites that go into organizing a constitutional referendum do not apply, and so when I get the legal opinion I will publish it so people will see that all this is, is a government seeking an indication of the opinion of people.”

According to Article 52 (1) of the Constitution, Parliament may make laws for the peace, order and good government of The Bahamas.  Article 52 (2) provides that the power of Parliament to make laws shall be exercised by bills passed by both houses, whether without amendment or with such amendments only as are agreed to by both houses, and assented to by the governor general in accordance with Article 63 of the Constitution.  The Privy Council in Cobb & Co. Limited and Other v. Norman Eggert Kropp (1966) 3 WLR 416 stated that, “The phrase ‘peace welfare and good government’ is one that is ‘habitually employed to denote the plenitude of sovereign legislative power, even though that power be confined to certain subjects or within certain reservations.’”  Therefore, the government, given its parliamentary majority can amend the Lotteries and Gaming Act to remove the prohibition against Bahamian participation in casino and other forms of gaming in The Bahamas.  However, given the apparently divided public opinion on this issue, the government has decided to poll the Bahamian electorate by way of referendum.

Section 2 of the Constitutional Referendum Act (1977) provides that, “For the purpose of obtaining the approval of the electors qualified to vote in an election of members of the House of Assembly with respect to a bill submitted to them, which bill seeks to alter an article of the Constitution specified in Article 54 (2) or (3) of the Constitution or any of the provisions of The Bahamas Independence Act, 1973, a vote shall be taken by way of a referendum held in accordance with this act.”  It is clear that a referendum, pursuant to the Constitutional Referendum Act, is part of a legislative process reserved to amending the articles specified in Article 54 (2) or (3) of the Constitution or the provisions of The Bahamas Independence Order.  Therefore, the proposed referendum on gambling would not fit within the legislative scheme of the Constitutional Referendum Act.

If the proposed referendum on gambling is intended to be a mere consultative or advisory referendum on the issue of whether the web shops and lotteries in The Bahamas should be legalized or not, in my opinion, there would have to be an amendment of the Constitutional Referendum Act or the passing of a new law to enable the conduct of an advisory or consultative referendum, as an advisory or consultative referendum is outside the parameters of the present Constitutional Referendum Act.   The Privy Council, in the case The Prime Minister of Belize v. The Attorney General of Belize (2010) UKPC 7, held that an amendment to the Referendum Act, which is not part of the legislative process and which does not purport to alter the deeply entrenched provisions of the Constitution, but is merely advisory or consultative, imposes no obligation on the legislature and therefore could not violate the Constitution.

On the evening of November 13, 2012 Christie, in a mature acknowledgement to the public questions and concerns raised about the process, announced that the proposed referendum had been postponed from December 3, 2012 to January 28, 2013.  The prime minister also disclosed that the postponed referendum will ask whether lotteries should be legalized, in addition to web shops.  On November 14, 2012 the government tabled a bill in the House of Assembly to amend the Constitutional Referendum Act and the Parliamentary Elections Act and provide a legal framework for the conduct of advisory or consultative referenda.

The adjusted proposal of the government, intended to achieve the limited objective of determining whether the Bahamian electorate supports the legalization of web shops and lotteries by way of an advisory or consultative referendum under the supervision of the parliamentary commissioner, will avoid controversy over the process of the referendum.

On a more substantive level, however, I urge that the Constitutional Review Commission recommend the removal of derogation clause 4 (e) from Article 26 of the Constitution, in order to affirm the constitutional norm of non-discrimination, regularize and tax the Bahamian community gaming industry and open casino gaming to Bahamian ownership, management and patronage.

 

• Alfred Sears is an attorney, a former member of Parliament and a former attorney general of The Bahamas.

Nov 15, 2012

thenassauguardian


Constitutional reform - pt. 12... ...I therefore recommend that Article 23 of the constitution be amended to include a specific guarantee for freedom of the press ...in order to better protect the community’s interest in integrity in public administration ...through robust scrutiny by an independent press

Friday, November 16, 2012

...the current operation of the gaming industry in The Bahamas leaves much to be desired ...and in some ways contravenes international laws

Gaming Industry Breaking Int’l Laws







By Ianthia Smith
The Bahama Journal



As it stands now the gaming industry in the country poses many problems for the country, both nationally and in the international arena, which is why Prime Minister Perry Christie says the country must come to a decision soon as to how it will proceed with this issue.

Prime Minister Christie said the options for his government are simple: either shut down local web caf├ęs or make them legal.

He added that that decision would soon have to be made as the current operation of the gaming industry in The Bahamas leaves much to be desired and in some ways contravenes international laws.

“The web shop operators are unable to secure bank accounts for their businesses as they do not satisfy the relevant anti-money laundering rules,” he explained. “There are concerns regarding the way in which the cash generated from the business is legitimised.”

“The web shops are used to facilitate the transmission of funds between individual resident on different Islands in direct contravention of the relevant banking and anti-money laundering rules.”

The prime minister said continued operation of the web shops in the manner outlined leaves The Bahamas exposed to international scrutiny and sanctions for failure to implement anti-money laundering rules.

He added that this position is not acceptable and needs to be addressed without further delay – an issue Mr. Christie said has been ignored for too long.

The prime minister added that this is why his administration plans to put in place what he is calling grandfathering provisions that will ensure that operators run a well regulated business which provides appropriate player protection and complies with anti-money laundering and anti-terrorism laws.

“The grandfathering provisions will, however, provide no guarantee that a licence will be awarded,” he said.

“Rather, existing operators will have to prove that they have conducted their gaming operations with integrity and fairness towards consumers, and, moreover, that they have the financial capacity and organisational structure to meet the high regulatory standards that will be demanded of them.”

He said the licences for web shop operators would be conducted in a similar manner to the licenses issued by the Gaming Board for land based casinos, this would include the appointment of an independent board, rigorous investigation of operators and their employees and input from external regulatory consultants from outside of The Bahamas who will make a recommendation to the Gaming Board on the suitability of each applicant.

The taxation regime and level of charges for licenses for the web shops, the prime minister added would be a combination of a flat rate tax licence fees and a cash bond.

The referendum will now be held on January 28 next year.

The legal framework to make that happen will be debated next week.

16 November, 2012

Jones Bahamas

Wednesday, November 14, 2012

From web shop operations to the legality of a referendum ...Perry Christie has been staggeringly confusing... ...Given his utter confusion, one can imagine how voters feel... ...A NO vote is the only logical choice amidst the great confusion Christie has wrought

Flip-flopping and dissembling: Christie’s credibility collapses
Front Porch

By Simon



In the debate on gambling we have a prime minister more engaged in zero-sum game-playing biased towards special interests rather than an open, straightforward approach that would benefit the majority of Bahamians.

In the lead-up to a promised referendum – rejiggered to an opinion poll – relative of legalizing web cafes, Perry Christie has appeared dissembling, confusing and incorrigibly incompetent.

We are being treated to 50 or so shades of gray, rather than conclusive answers to clear-cut questions.   Whatever the poll tally, an early loser is Christie’s credibility, having crashed, with poor odds of reviving any time soon.

Channelling the contortion of former U.S.-presidential candidate John Kerry that he was for the second Iraq War before he was against it, Christie said there was a report before saying there is no report from his UK-based consultants.

Children are taught early that a contortion often leads to another, then another, resulting in one becoming so tongue-tied and twisted into knots that one begins to resemble a pretzel of irreconcilable contradictions.

In a story in this journal, Christie performed an acrobatic flip worthy of Cirque du Soleil.  Fasten your seatbelt: It’s going to be a bumpy ride following Christie’s flip-flopping:  “‘What report?  What report?’ he [Christie] responded, when asked if he would release the consultants’ report before the referendum on gambling...‘It was never a specific report.

‘It’s no physical report; there are three or four pages of advice that you get from time to time.  I don’t understand the question of whether there is a report to be released.  There are like five, six, seven different letters to us — no report.’

When asked if he would release the written communication from the consultants, he said, ‘No, why would I want to do that?  For years and years we’ve been receiving advice as to casinos and changing casinos, so what is the relevance, that I’m hiding something on it?’  What curious choice of language.

Magician

Christie might double as a magician with the report which he said existed, now only a few pages of advice.  The story confirmed: “However, Christie previously told The Nassau Guardian that the UK consultants presented a ‘report’ to him, but he said he had to review it before he could reveal their advice.”

Confused?  There’s more.  The story’s subtitle, “Christie not clear on how web shops operate”, was highlighted when he was asked a question about the operation of web shops: “‘I have no idea how they do their operations’, he said.  ‘The details will come in the legislation.  It only becomes relevant if in fact there is a vote for us to go ahead.’”  Further: “He said he wrestled with the decision to exclude a national lottery from the ballot.”

Let’s see if we can unravel this tangled web cafe weave that is being spun into a yarn.  Christie claims that he has no idea about certain web shop operations.  Well, shouldn’t he have made inquires before calling a referendum on the very web cafes of which he claims to have limited knowledge.

It’s the ever-so-handy ignorance defense Christie employs, like his claim that he doesn’t know if various web shop enterprises gave money to his party at the recent general election.  Watch for his ignorance defense on other hot-button issues.

In terms of web cafes, surely a well-informed leader and self-described great democrat like Christie would want to dispel his veil of ignorance on matters which speak to a potential conflict of interest and the need for good governance.  Curiously, in claiming ignorance of these matters he is also claiming to be woefully incompetent.

Indeed, if Christie is so studiously ignorant of matters widely-known among the general populace, and critical for decision-making on web cafe gambling, he clearly lacks the credibility to make informed judgments on this complex issue.

Nonsense

Inexcusably, he is counselling that various matters that should be known in advance will only become relevant after a yes vote.  There it is: Christie thinks that he’s that clever and voters that stupid to buy such nonsense.

Christie offered that he: “ ...wrestled with the decision to exclude a national lottery from the ballot.”  Was it the sort of wrestling one might watch on television in which promoters know the results beforehand, and after heavily betting on the outcome?

Nevertheless, as there is supposedly no report and only a few letters from the consultants, what was Christie wrestling with?  By the way, how much were the consultants paid for the few letters of advice?  And, if there is no detailed report, why should we believe his claim that a national lottery is commercially nonviable?

The Nassau Guardian’s story noted: “Christie said those who are concerned about how web shops would operate in a regulated industry should be satisfied that the government would impose ‘stringent and effective’ laws on the market.”

Suppose a flip-flopping, fast-talking travelling salesman asks for a blank check for a vague-sounding scheme, the details of which he will give you only after you hand him the check?  It would be folly to handover such a check.

Given the jackpot of lemons of foolish talk, inconsistency and reluctance to share certain information, the Christie administration should not be handed a blank check on the question of web cafe gambling.
The Guardian story read: “Last week, the prime minister said the referendum would only ask Bahamians to vote on whether they wish web shops to be legalized...”.  Here’s where knowledge of how web cafes operate is critically important for such a seemingly ill-informed prime minister to understand.

Today’s web cafes are gambling enterprises through which customers may bet on all manner of games from overseas lotteries to games of chance one might find in a casino.

Variance

In being asked whether such cafes should be legalized are we essentially being asked to green-light private lotteries and online casino gambling?  All of which appears at variance with what Christie said in a House communication: “Based on the considered advice of the government’s UK-based, international specialist consultants, it is no longer considered that a national lottery would be commercially viable at this time.”

A national lottery is less viable if competing lotteries are being run by private interests who will pocket the vast majority of the profits.

But a national lottery is commercially viable if the web cafes become national lottery outlets instead of a cartel raking in windfall profits for formerly criminal enterprises.

In a shameful betrayal of the national interest and the common good Perry Gladstone Christie has opted for a private lottery system that will mostly benefit the greed of a few, instead of a national lottery that will overwhelmingly benefit the needs of the many.

Christie also said in his communication: “ ...Neither the extension of casino gambling nor the removal of the prohibition on casino gambling by Bahamian citizens and residents will be the subject of the forthcoming referendum. ... To be completely clear, therefore, the forthcoming referendum will focus only on web shop gaming.”

Sadly, when this prime minister says that he intends “to be completely clear” that may signal that contradictions and convoluted rhetoric will follow.  Unless we are absolutely clear on the gambling to be permitted in web cafes, the legalization of web cafe-related casino gambling may be in the offing.  So Bahamians will be permitted to legally engage in this type of casino gambling, but not in casinos?

Christie’s claim of neutrality in the debate on gambling is a farce wrapped in a series of flip-flopping riddles, chronic contradictions and breathtaking hypocrisy.

Of his rush to have a vote on gambling, Christie said with a straight face that the opposition would have to get used to his supposedly newfound pace of decision-making.  Of course that had to be a joke.

The sad truth is that Christie and his government are chronically incompetent whether they are late-again or rush into a bungling and inept decision.  With Christie, no matter the pace of his decisions, competence has never been his strong suit.

From web shop operations to the legality of a referendum on this issue, Christie has been staggeringly confusing.  Given his utter confusion, one can imagine how voters feel.  A no vote is the only logical choice amidst the great confusion Christie has wrought.

November 13, 2012

The Nassau Guardian



www.bahamapundit.com

frontporchguardian@gmail.com

Tuesday, November 13, 2012

If there is to be a gambling referendum, it should address the big three: ...casino gambling, a national lottery and online gambling/web shops

Is The Gambling Referendum Worth The Time?




By NOELLE NICOLLS
Tribune Features Editor
nnicolls@tribunemedia.net



THE upcoming referendum is really yucking up my vexation. I join the chorus of Bahamians encouraging the government to put a proper referendum forward; one that is worth suffering the inconvenience of going out to vote. There is no shame in doing the right thing.

My concerns, however, do not echo some of the popular discourse. I for one believe some of the complaints represent plain ole “bad mind”: grudgfulness and hypocrisy. And I have no intention of perpetuating that.

If the government is going to put a question to the Bahamian people by way of a referendum, it has a responsibility to educate the Bahamian people about the question and the premises upon which it is based. It is completely inadequate for the government to say it is staying out of the fray. Gambling in the Bahamas is a complex issue and an uninformed public serves no one.

My first point explores the issue of web shops. There is a major point that seems to be eluding the government and many observers; Web shops in the Bahamas are licensed businesses. They are not illegal operations, even though they function within grey confines of the law.

Bahamians tend to make generalised statements about gambling being illegal. However, there is a big difference between something that is illegal (meaning, something that contravenes the regulations set out in a particular statue) and something that is simply unregulated. In reality, much of what web shops now do is not illegal: They are simply not regulated.

Those distinctions may seem meaningless as Bahamians discuss the matter over the airwaves. However, they are very real in the face of the law. The legal experts employed by web shops are well aware of this, and they use it to their advantage. Let us not forget, the attorney for one of the web shops was a former member of parliament.

These businesses are not fly by night operations. They are run by astute businessmen with sharp attorneys. To date I am not aware of any successful legal challenge which resulted in a web shop license being revoked or a web shop being closed. To the contrary, web shops continue to grow and expand.

I am no legal expert, but it is obvious that loopholes in the law have enabled web shops. The real crime is not the business acumen and legal prowess of gambling bosses, it is the shortsightedness and perhaps ineptness of subsequent governments in failing to get ahead of the industry, which is surprising considering the House of Assembly is riddled with lawyers.

On this point there has been zero accountability, and it has left the Bahamian public confused and uninformed about the issues. The Free National Movement (FNM) is grasping at straws to criticize the Progressive Liberal Party (PLP) led government, but neither party has clean hands.

Government regulations have simply not kept pace with the evolution of the numbers business. The failures have created grey areas in the law that makes it near impossible to regulate the industry or prosecute its players. This is particularly true as it relates to the wire transmission of wagering information (online gambling).

Bahamians are still applying an old school way of thinking about numbers to an industry that has made quantum shifts. Long gone are the dice and paper days when underground gaming houses actually pulled numbers. The business model has changed.

Technology – specifically the advent of online gaming – has given gambling bosses the ultimate opportunity to step out of the shadows onto the frontlines having no regard for the Lotteries and Gaming Act.

Web shops are some of the most technologically advanced businesses in the Bahamas. They have invested millions in technology. They purchase world class software from the same providers who supply banks and other companies in the financial services industry. They use sophisticated systems that are elusive. The laws or law makers simply did not anticipate this sort of development.

A consumer can setup a charge account with a web shop and from the comfort of their own home gamble online. Without unjustifiable invasions of privacy on the part of the government, such a practice is impossible to prohibit.

A web shop can set up a computer lab and provide Internet access to its consumers and free itself of responsibility as to what its customers do online: write a business proposal, read soap opera news or gamble online.

Online gaming has become so popular with women that they now comprise the largest share of web shop customers, according to inside sources.

It has created a completely new and extremely profitable revenue stream for web shops.

The laws that govern the gaming industry are highly technical. When online gaming exploded, it made international regulators dizzy. Online gambling houses were able to exploit a host of loopholes and grey laws.

There is still a raging global debate about how and if to regulate or prohibit online gambling. Bahamian regulators are far behind on the learning curve.

Last week, Gaming Board Chairman Andre Rollins questioned the legality of bets being waged using lotteries from in the United States. He said the government would have to look into the practice if the referendum were to pass. This investigation should not take much time.

According to industry insiders, it is perfectly legal to use publicly broadcast US lottery numbers in the way they are currently being used locally. A Bahamian, who wages a bet on the Miami lotto, for example, is not buying into the Miami lottery. They are on betting they can guess the outcome of the Miami lottery. Third parties are not permitted to use the logos, slogans or trademarks of the originating lottery. The results, however, are public knowledge, and third parties are free to use these numbers how they see fit.

International sports bookies do a similar thing when they establish bets on various national sports associations, such as the National Basketball Association (NBA). International bookies cannot use NBA trademarks, but they do not need permission from the NBA to establish a bet around which team might win any particular game.

How does this relate to the referendum? For one, it complicates the matter highly, because the Prime Minister has said, should the people vote no, he will enforce the law and shut down web shops. That sounds good, but a government cannot arbitrarily shut down a business or revoke a business license. The business has to have committed an actionable offence. If the legal experts can effectively argue that existing statutes do not regulate the activities they engage in, then the government would have no legal basis to shut down web shops. They would have to enact new laws before they could touch the web shops.

Web shops are not going to roll over and disappear. They are going to fight. I do not say this having some special insider information. It is only logical. It is a million dollar business and the industry’s financiers are heavily invested. Alternatively they will return to the shadows or take their business outside the country.

Understanding all of this, I maintained the view from before the general election that a referendum on web shops made no sense. It was an unwise populist promise. I still hold this view. Anyone with eyes to see knows well that gambling is by and large embraced by Bahamians.

There are as many web shops in the Bahamas as there are churches and liquor stores. Perhaps the Bahamas Christian Council is jealous.

I heard Mario Moxey of the Bahamas Christian Council (BCC) making asinine arguments on the radio the other day about morality and gambling. Morality is irrelevant to the public policy question at hand.

I am not questioning the BCC’s right to spiritually advise its believers about the immorality of gambling. Christians have a right to hold the view that gambling is a sin. I do not believe they have the right to impose that view on others, or to insist public policy reflect that view. But I understand the church is desperately trying to be relevant.

Walk through the doors of a web shop on any given day at any given time: There will be people standing on line or sitting in front of the computers who do not agree with the BCC’s perspective. They do not see gambling as wrong. And it is their right to feel that way.

Gambling may very well be immoral within the Christian worldview, but is that really a basis on which the government should use public policy to prohibit all Bahamians. Is there a valid case that can be made against gambling that should not also apply to alcohol or tobacco consumption? Clearly not.

The government needs no permission to eliminate the grey areas which have enabled web shops to thrive. And the law as it stands empowers the government to grant exemptions for specific types of gambling, whether a church raffle or an internet gaming shop. It is largely because of the vocal opposition of the church and its political implications that the government has not and would not act. The PLP gambled that a referendum would provide the cover to act, one way or the other.

The government has tangled itself in a real web. Should the people vote no, the government will have an even bigger mess on its hands and the potential political fallout will be far worse that what currently exists.

The tide seems to be turning against the government and not for any reasons relating to how Bahamians actually feel about web shops or gambling. The perceived backtracking on the national lottery election promise and the lack of transparency around the government’s foreign consultants is pissing the public off. It has raised suspicion of kickbacks. The public seems ready to vote no, just to spite the government. If that happens, the referendum will have caused much more problems than it is worth: unnecessary problems at that.

I am undecided about going to cast my vote in the referendum; I feel it will be a waste of my time. The referendum addresses nothing of substance and there are no stakes in it for me. I am not a gambling enthusiast, although I have patronized web shops before. So I would suffer no great loss should web shops be closed down, but I would also take no offence if they remained open. So why should I go vote?

Casino Gambling

I would go out and vote for a constitutional worthy gambling question.

The government currently upholds a policy which allows non-Bahamians to gamble inside the Bahamas, while prohibiting Bahamians from being able to do so. Is such a policy discriminatory and/or unconstitutional and should it be upheld? These issues are referendum worthy.

The current casino policy is clearly discriminatory. It was instituted during a time when Bahamians were seen as irresponsible and incapable of handling the freedom to gamble. It was enacted by the government under pressure by the church lobby pedaling the same social mayhem theory as today. It was objectionable then and it is objectionable now.

There is no way a foreigner should have the right to engage in any activity in my country that I have no right to participate in. For me, there is no other argument.

A layman’s reading of the constitution, specifically Article 26, which deals with how the constitution defines discrimination, suggests that the existing casino policy is not unconstitutional. It seems the crafters of the constitution fashioned a specific clause (26.4e) to satisfy the church and casino lobby. (Thanks to Dr Ian Strachan for opening up the discussion on this issue).

The clause prohibits discrimination except where the law makes provision for “authorizing the granting of licenses or certificates permitting the conduct of a lottery, the keeping of a gaming house or the carrying on of gambling in any of its forms subject to conditions which impose upon persons who are citizens of The Bahamas disabilities or restriction to which other persons are not made subject.”

In essence, it seems the discriminatory practice existed prior to the drafting of the constitution, and this clause was included in the constitution to secure the status quo and to protect against any legal challenge to the establishment.

The clause does not, however, obligate or compel the government to support the policy, which quite clearly discriminates against Bahamians. It only provides legal cover to the government if it chooses to support such a policy.

Should the government support a policy that discriminates against Bahamians gambling in casinos? No. If the government wished to have a referendum to affirm the will of the people on this particular issue, it would certainly be a vote worth casting. Why? Because it affirms a basic yet fundamental principle of freedom and sovereignty.

The government would show real leadership by putting this question to rest.

If Bahamians had more access to gambling opportunities there are obviously risks, but the social mayhem theory being pedaled is a fantasy. The gaming industry should not be a free for all. There should be government regulation and protections put in place to address the social concerns. But history has shown the futility of prohibition and wisdom compels us to err on the side of freedom of choice.

I will discuss the national lottery issue in detail next time. For now, I will say the government’s actions have raised serious questions about transparency and due process. It makes no sense to start the argument with questionable evidence that concludes a national lottery is not feasible. A referendum is needed to establish the will of the people. If the Bahamian people desire a national lottery, then the government should undergo a rigorous and transparent process to create one. It has been done before in comparable jurisdictions and unless we are inept a national lottery can apply here.

There is obvious interest in a national lottery and the government’s actions fly in the face of the public. As I understand it, there may be a new announcement coming as early as today addressing the government’s position on this.

I will end where I started: There is no shame in doing the right thing. If there is to be a referendum it should at least address questions worth suffering the inconvenience of going out to vote. If there is to be a referendum, it should address the big three: casino gambling, a national lottery and online gambling/web shops. The government has kicked the bucket down the road for too long. Let us not waste anymore time.

November 12, 2012


Saturday, November 10, 2012

Constitutional reform - pt. 12... ...I therefore recommend that Article 23 of the constitution be amended to include a specific guarantee for freedom of the press ...in order to better protect the community’s interest in integrity in public administration ...through robust scrutiny by an independent press

Constitutional reform pt. 12

Freedom of expression


By Alfred Sears


In a democratic society there is no greater right than the right of citizens to know what the government is doing on their behalf, which includes the right to hold opinions, to receive and express ideas and information without interference.  The constitution guarantees our right to freely express ourselves by engaging in open political debate amongst ourselves as well as to engage in political discourse with our elected officials and with candidates who offer themselves for public office.

Article 23 of the constitution guarantees freedom of expression to every person in The Bahamas that provides that:

1. Except with his consent, no person shall be hindered in the enjoyment of his freedom of expression, and for the purpose 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 –

(i) in the interest of defense, public safety, public order, public morality or public health; or

(ii) for the purpose of protecting the rights, reputations and freedom of other persons, preventing the disclosure of information received in confidence, maintaining the authority and independence of the courts, or regulating telephony, telegraphy, posts, wireless, broadcasting, television, public exhibitions or public entertainment; or

(iii) which imposes restrictions upon persons holding office under the Crown or upon members of 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.

This guarantee is meaningless unless there is reasonable access to the broadcast media and protection of the media.  Therefore, the issuance of private broadcast licenses in The Bahamas beginning around 1994 has allowed greater freedom of expression in The Bahamas.

The Court of Appeal of Belize in the Belize Broadcasting Authority v. Courtenay (1986) 38 WIR 79, dealing with a provision, identical to Article 23 of the Bahamian Constitution, under the Constitution of Belize, held that to broadcast on radio and television is “today an integral part of the freedom of expression and to place the need for the authority’s consent before one can do what is an integral part of the freedom constitutes a hindrance to that freedom.”  Access to the broadcast media is especially important in an archipelago, like The Bahamas, where people are scattered over many different islands separated by a wide expanse of water.

The Privy Council has held that fear of criticism cannot justify hindering the public access to the broadcast media and access to the broadcast media by political opponents.  In the case Hector v. Attorney General of Antigua and Barbuda (1990) 2 All E. R. 103, per Lord Bridge, held that: “In a free democratic society it is almost too obvious to need stating that those who hold office in government and who are responsible for public administration must always be open to criticism.  Any attempt to stifle or fetter such criticism amounts to political censorship of the most insidious and objectionable kind.  At the same time it is no less obvious that the very purpose of criticism leveled at those who have the conduct of stewardship is to persuade the electorate that the opponents would make a better job of it than those presently holding office...”.

In the United States, the First Amendment of the constitution declares that the Congress shall not abridge the freedom of the press.  However, in the Constitution of The Bahamas, there is no specific mention of the press or the guarantee of press freedom.  In The Bahamas, the laws of defamation and a fear of offending a prime minister or other elected officials often places a restraint on robust investigative reporting on politically sensitive matters.  A number of journalists in The Bahamas have been prosecuted, sued or threatened with prosecution for criticizing aspects of the public administration in The Bahamas.  The community interests, integrity and honesty in public administration can be compromised when the people and the press do not enjoy absolute privilege to criticize public officials.  This privilege should include matters of public concern, public officials and candidates for public office.  As the United States Supreme Court stated, in the case New York Times Co. v. Sullivan, debate on public issues should be uninhibited, robust and wide open and may well include vehement caustic and sometimes unpleasant sharp attacks on government and public officials, an occasional erroneous statement is inevitable in free debate.  Save and except in cases of malice, the press should be unfettered in its criticism and scrutiny of public administration in The Bahamas.

I therefore recommend that Article 23 of the constitution be amended to include a specific guarantee for freedom of the press in order to better protect the community’s interest in integrity in public administration through robust scrutiny by an independent press.


• Alfred Sears is an attorney, a former member of Parliament and a former attorney general of The Bahamas.

Nov 08, 2012

thenassauguardian


Constitutional reform - pt. 11... ...The supreme law clause of the constitution should be strengthened in the following ways: ...(a) by granting to the courts the power to review legislation to ensure consistency with the constitution... ...(b) by conferring legal standing to citizens of The Bahamas, in their own interest ...or as part of an association or interest group ...to initiate a constitutional challenge with respect to the validity of any legislation that they consider to be inconsistent with the constitution

Constitutional reform - pt. 11... ...The supreme law clause of the constitution should be strengthened in the following ways: ...(a) by granting to the courts the power to review legislation to ensure consistency with the constitution... ...(b) by conferring legal standing to citizens of The Bahamas, in their own interest ...or as part of an association or interest group ...to initiate a constitutional challenge with respect to the validity of any legislation that they consider to be inconsistent with the constitution

Constitutional reform pt. 11


By ALFRED SEARS


Chapter one of the constitution states that the constitution is the supreme law of The Bahamas in the following terms: “This Constitution is the supreme law of the Commonwealth of The Bahamas and, subject to the provision of this constitution, if any other law is inconsistent with this constitution, this constitution, shall prevail and the other law shall, to the extent of the inconsistency, be void.”

In a political culture where the political directorate is perceived to be the highest law of the land, it is the constitution which is the supreme law and should any other law be inconsistent, that other law would be declared null and void and of no effect.  The prime minister, the Cabinet and Parliament are subject to the constitution and any executive action which contravenes a provision of the Constitution can be declared to be null and void and of no effect by the Supreme Court.

The Supreme Court, the Court of Appeal or the Judicial Committee of the Privy Council, through the power of judicial review, can examine any law passed by the Parliament or any action by the executive branch of government to determine whether it is consistent with the constitution.  If it were found that a law or an action by the executive branch is inconsistent with the constitution, the court can declare it unconstitutional and award a remedy to the aggrieved person.

A case

The supremacy of the constitution was dramatically affirmed in the case D’Arcy Ryan v. Attorney General (1977).  In this case, Ryan had applied to become a citizen of The Bahamas on October 24, 1974, pursuant to Article 5 of the constitution.  Ryan had been living in The Bahamas as his primary residence from 1947 and received belonger status in 1966.  He was married to a citizen of The Bahamas and all of his seven children of the marriage had been born in The Bahamas.  Ryan was informed on June 16, 1975 that the minister of home affairs had refused his application.  The minister gave no reason for his refusal of the application.  Ryan instituted legal proceedings in the Supreme Court seeking a declaration that upon the true construction of the constitution he was entitled to be registered as a citizen of The Bahamas and that section seven of the Bahamas Nationality Act, 1973 and was ultra vires the constitution.  Two justices, sitting as a division of the Supreme Court, held that the purported decision of the minister was a nullity and referred the matter back to the minister to be reconsidered in accordance to law.  The attorney general appealed the decision of the Supreme Court to the Court of Appeal.  The Court of Appeal held that section seven (a) – (e) of the Bahamas Nationality Act was not ultra vires, but that the proviso thereto was ultra vires the constitution, as it did not prescribe any ground on which the minister could base his refusal.  The Court of Appeal found that the minister’s refusal to grant Ryan’s application for citizenship was therefore a nullity.  The attorney general appealed the decision of the Court of Appeal to the Privy Council.  Lord Diplock, writing for the Privy Council in 1979, held that: “Their Lordships accordingly propose humbly to advise Her Majesty that for the single declaration made by the Court of Appeal, the following declarations as to the several questions of law that have been raised by these proceedings should be made:

(1) A declaration that the minister’s decision of 28 May 1975 to refuse the plaintiff’s application dated 27 June 1974 for registration as a citizen of The Bahamas is null and void.

(2) A declaration that the final words of the proviso to section seven of The Bahamas Nationality Act, 1973, viz: ‘or if for any other sufficient reason of public policy he is satisfied that it is not conducive to the public good that the applicant should become a citizen of The Bahamas’ are inconsistent with the Constitution of the Commonwealth of The Bahamas and are void.

(3) A declaration that the plaintiff is entitled to have his application for registration as a citizen of The Bahamas dated 27 June 1974 reconsidered by the minister according to law, as it has been stated in their lordships’ reasons for their humble advice to her majesty in this appeal.”

The Ryan case demonstrates that the court, if inconsistent with the constitution, can declare ministerial decisions, null and void.

Notwithstanding the clear direction by the Privy Council in 1979 that Ryan should be given Bahamian citizenship as a matter of constitutional entitlement, the government did not issue Ryan a Bahamian passport until 1993.  This case illustrates the need for citizens in a democratic society to be vigilant to ensure that the guarantees enshrined in the constitution are in fact observed by the state.

Recommendation

The supreme law clause of the constitution should be strengthened in the following ways:

(a) by granting to the courts the power to review legislation to ensure consistency with the constitution;

(b) by conferring legal standing to citizens of The Bahamas, in their own interest, or as part of an association or interest group, to initiate a constitutional challenge with respect to the validity of any legislation that they consider to be inconsistent with the constitution.

• Alfred Sears is an attorney, a former member of Parliament and a former attorney general of The Bahamas.

Nov 01, 2012

thenassauguardian


Constitutional reform - pt. 10... ...The government should commission The College of the Bahamas and the Eugene Dupuch Law School to conduct a scientific study to determine the comparative deterrence between the death penalty and life imprisonment ...to inform public education and policy on the issue of the death penalty... ...

Thursday, November 8, 2012

The Bahamas, being a no-direct-tax destination ...and dependent on indirect taxes ...needs to be aware of the consequences of higher taxes - says John Bain - Managing Partner of UHY Bain & Associates

Bahamas Warned Not To Increase Tax Burden




The Bahama Journal



A chartered accountant is warning the government to hold the line on indirect personal taxation as a study of 26 countries revealed what its authors called “the yawning gap” between the ability of high and low tax economies to attract and retain talent and investment.

The study, conducted by UHY, the international accounting and consultancy network with affiliates in 81 countries, says the broadening gap has been driven by struggling European economies raising taxes to plug gaps in budget deficits while emerging economies like BRIC nations (Brazil, Russia India, China) are attracting more professionals – and investment.

UHY warns that higher taxation is making European economies even less competitive relative to rival low tax economies.

Managing Partner of UHY Bain & Associates in The Bahamas office John Bain warned that while The Bahamas was not included in the year-long, 26-nation study – Bain & Associates was just named to the global network last month – the country would do well to heed the results that clearly showed populations and investment followed the path of attractive personal taxation.

“The Bahamas, being a no-direct-tax destination and dependent on indirect taxes, needs to be aware of the consequences of higher taxes,” said Mr. Bain.

“The population is highly taxed indirectly, which results in the burden of taxation being skewed unfavourably towards the poor and middle class. The Bahamas government has promised a revamping of its taxation system. As some of the residual income of some European countries is astounding, this report and the comments by the country partners should be considered at the discussion phase of taxation reform in The Bahamas.”

While The Bahamas has no direct income tax and prides itself on being a tax-neutral country free of estate, personal income, capital gains and other forms of taxation, Bain estimates that the indirect taxation from Customs duties and a cornucopia of fees amounts to between 30 per cent and 40 per cent, placing this nation in a precarious position for holding on to talent.

According to the six-page UHY release issued yesterday with details of the study, the average taxpayer in a BRIC country earning $25,000 a year will keep 85 per cent of their salary.

Someone earning $200,000 will keep 75 per cent.

Higher tax countries, including those in Western Europe, are taking upwards of 50 per cent of high income salaries.

Russia, with a flat tax rate of 13 per cent across the board, was the most consistently low-tax economy while Italy and France were in the highest taxing economies for every pay scale with France taking as much as 75 per cent of incomes over $1.3 million.

“The low tax economies, not all of which are developing economies, have been able to maintain or cut their tax rates over the past year,” said UHY Chairman Ladislav Hornan.

“Traditionally, the EU (European Union) has been able to offset the effect of high taxes by offering a wide range of public services. However, tax rises in some EU countries have come hand-in-hand with sweeping cuts to public services.”

Two of the countries imposing the five highest tax rises between 2011 and 2012 for those earning $200,000 or more were the US and France. Russia’s low flat tax rate means a taxpayer earning $250,000 will take home $80,000 more per year than a worker making the same amount in Italy.

“The first response to the impact of taxation on decision-making is concern about investment,” said Mr. Bain.

“But over the long run, the more significant impact may be a brain drain with taxation driving talented professionals, especially those who are relatively young and mobile, to jurisdictions with more appealing taxation translating into more attractive income. There is a tipping point in everything and we have to be very careful in The Bahamas to take results like this into account because increases in taxation that seem to provide a temporary breather can be a long-term threat to the very economy we are trying to build. Conversely, lowering the rate of taxation may be among the smartest moves we can make to retain talent and attract investment.”

Bain & Associates, forensic accountants, was named The Bahamas affiliate to UHY in October, joining independent firms that together represent 6,800 staff in 81 nations.

8 November, 2012

Jones Bahamas

Wednesday, November 7, 2012

...the Bahamian government has got its gaming policy wrong ...it should implement a National Lottery rather than look at legalising web shop operations (“personal rackets") - says international regulatory expert and mayor of Port of Spain, Trinidad and Tobago - Louis Lee Sing

Gaming Expert: Government Wrong To Legalise 'Rackets'




By NATARIO MCKENZIE
Tribune Business Reporter
nmckenzie@tribunemedia.net


An international regulatory expert yesterday said the Bahamian government had got its gaming policy wrong, arguing that it should implement a National Lottery rather than look at legalising web shop operations he described as “personal rackets”.

Louis Lee Sing, mayor of Port of Spain, Trinidad and Tobago’s capital, told Tribune Business that gaming must be operated or managed by the state, not left in the hands of a few select citizens.

Mr Lee Sing, a former chairman of Trinidad’s National Lottery Control Board, who was instrumental in helping to reform the gaming business in that country, was a presenter at yesterday’s session of the Bahamas Institute of Chartered Accountants (BICA) accountant’s week seminar.

Mr Lee Sing, who made it clear that he had no vested interest on the outcome of the December 3 referendum on whether or not to legalise web shop gaming, told Tribune Business: “The Trinidad and Tobago lottery has proven to be a success story.

“Between 2010 and 2012 it has generated roughly $5 billion T&T dollars. The highest contributing game to it is a number game we used to call Whe Whe, which we turned into a game we call Play Whe. All of this is online, and it provides the kind of transparency needed in something like gaming.

“Gaming in any society must be operated by the state. If it is not operated by the state it must be managed by the state, and so the question is not whether to regulate it but how to regulate, when to regulate and where to regulate.

“If you approach it from that perspective, the question really answers itself. In Trinidad and Tobago we have allowed the online games to grow, to prosper and it has given every Trinidadian the opportunity to participate without any hanky-panky, corruption or fraud.”

Mr Lee Sing further added: “What you have here, I suspect, is something different than we have in T&T. My fear is that you are about to legalise something that ought not to have been in the first place. People can’t be allowed to run their own rackets, as it were.

“I sense that the Government, rather than go the way of legalising the web operators, should be moving as it were to introduce a National Lottery.

Of course, the web operators could be a part of a national lottery because if they are taking bets now for other kinds of games, they would be permitted to take bets for the lottery by putting in a terminal, but they would not have ultimate control over the terminal."

“My argument is that the all the men who currently run web shops or internet cafes should be asked to continue running Internet cafes and, if they wish, they could apply for a lottery terminal and they would be playing by the rules of the state. They would not be able to do hanky panky and money laundering.”

The Christie administration’s consultants, Dixon, Wilson & Co, ruled out a National Lottery for the Bahamas on the grounds that there would not be enough interest, especially given the competition from Florida.

But Mr Lee Sing said that it was in the best interest of “countries, the people and economies” to legalise and regulate gaming.

“It’s important that the Government of the Bahamas take control of the lottery,” he said. “In taking control of the lottery the Government must ensure that people across the Bahamas are allowed to play the lottery simultaneously.

“If those fellows who are running these Internet cafes want to be a part of the dance, let them buy the ticket and come in. Let them buy a lottery terminal that can be placed in the cafes, so that they can have a chance to be a part of the process, but you cannot leave it in the hands of a few select citizens at the expense of everyone else.”

Outlining some of the benefits of legalised gaming, Mr Lee Sing said: “If you legalise gaming you are going to create employment and organise sustainable employment at varying levels.

“You would be making varying contributions to the state. You are going to be given an opportunity to do clearly defined good projects. You will ensure the collection of fees and taxes. You will ensure that there is transparency.”

November 07, 2012

Tribune242