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