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