Constitutional reform pt. 6: ... ...I recommend therefore that the recommendations of the disbanded Legal Aid Commission be reviewed ...and used as a guide for the establishment of a Public Defender’s Office and Legal Aid Facility, funded from public and private sources ...to balance the power and resources that the attorney general, the director of public prosecutions and commissioner of police bring to the prosecution on behalf of the state ...and to give the indigent defendant and litigant a fair opportunity to defend her or his life, liberty and property

Constitutional reform pt. 6

By Alfred Sears

In a democratic society the right of every person to be secure in the protection of the law is a basic safeguard of the liberty interest of each person.  When the liberty interest of a person is threatened by a serious criminal charge, the extent to which the accused can have a fair hearing within a reasonable time, in the face of the enormous resources of the state at the disposal of the prosecution, is the test of a democratic society.

The procedural protection for accused persons under the constitution reflects the extent to which the constitution places the state under the rule of law in balancing the interest of the individual and society.

Article 20 of the constitution provides procedural justice, through the guarantees, for example, of the presumption of innocence, public trials, right to trial by jury, the right to counsel and the right to not incriminate oneself.  These rights, based on the principle of fundamental justice, are not exhaustive because the concept of natural justice, like the constitution, is an evolving concept.

 This proposition was supported by Lord Diplock, writing for the Privy Council in the case Haw v. Public Prosecutor (1981) 3 All ER 14 at 21-22, who observed that: “Their lordships recognize, too, that what may properly be regarded by lawyers as rules of natural justice change with the times.  The procedure for the trial of criminal offenses in England at various periods between the abolition of the Court of Star Chamber and High Commission in the seventeenth century and the passing of the Criminal Evidence Act in 1898 involved practices, particularly in relation to the trial of felonies, that nowadays would unhesitatingly be regarded as flouting fundamental rules of natural justice.”

Similarly, in The Bahamas our concept of fairness must be informed by the evolving standard of decency and fundamental justice under international human rights law.  The procedural justice standard to secure the protection of the law for persons in The Bahamas is outlined in Article 20 of the constitution which provides:

1) If any person is charged with a criminal offense, then, unless the charge is withdrawn, the case shall be afforded a fair hearing within a reasonable time by an independent and impartial court established by law.

2) Every person who is charged with a criminal offense:

a) shall be presumed to be innocent until he is proved or has pleaded guilty;

b) shall be informed as soon as reasonably practicable, in a language that he understands and in detail, of the nature of the offense charged;

c) shall be given adequate facilities for the preparation of his defense;

d) shall be permitted to defend himself before the court in person or, at his own expense, by a legal representative of his own choice or by a legal representative at the public expense where so provided by or under a law in force in The Bahamas;

e) shall be afforded facilities to examine in person or by his legal representative the witnesses called by the prosecution before the court, and to obtain the attendance and carry out the examination of witnesses to testify on his behalf before the court on the same conditions as those applying to witnesses called by the prosecution;

f) shall be permitted to have without payment the assistance of an interpreter if he cannot understand the language used at the trial of the charge; and

g) shall, when charged on information in the Supreme Court, have the right to trial by jury; and except with his own consent the trial shall not take place in his absence unless he so conducts himself in the court as to render the continuance of the proceedings in his presence impracticable and the court has ordered him to be removed and the trial to proceed in his absence.

3) When a person is tried for any criminal offense, the accused person or any person authorized by him in that behalf shall, if he so requires and subject to payment of such reasonable fee as may be prescribed by law, be given within a reasonable time after judgment a copy of for the use of the accused person of any record of the proceedings made by or on behalf of the court.

4) No person shall be held to be guilty of a criminal offense on account of any act or omission that did not, at the time it took place, constitute such an offense, and no penalty shall be imposed for any criminal offense that is severer in degree or description than the maximum penalty that might have been imposed for that offense at the time when it was committed.

5) No person who shows that he has been tried by a competent court for a criminal offense and either convicted or acquitted shall again be tried for that offense or for any other criminal offense of which he could have been convicted at the trial for that offense, save upon the order of a superior court in the course of appeal or review proceedings relating to the conviction or acquittal.

6) No person shall be tried for a criminal offense if he shows that he has been pardoned for that offense.

7) No person who is tried for a criminal offense shall be compelled to give evidence at the trial.

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 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…”

However, the effectiveness of these constitutional guarantees, such as the presumption of innocence, can be challenged when a person is charged with sensational charges or when the interests of powerful persons and countries are involved.  The issue of the secure protection of the law and state action was raised in the case of Samuel Knowles.  Knowles was the subject of extradition requests by the United States, after having been designated by the president of the United States as a drug “kingpin” under the Foreign Narcotics Kingpin Designation Act 1999.  Knowles applied for habeas corpus, based on subsection 7 (1) (c) of the Extradition Act (Ch. 96 of the 2000 Edition of the Statute Laws of The Bahamas).  The hearing was assigned to Justice Lyons who, at a case management meeting with both counsel present, fixed the matter to be heard on September 28, 2006.  On August 28, 2006 Knowles was extradited to the United States.  The Bahamian Court of Appeal, in Knowles v. The Government of the United States of America and another (2008) 5 BHS J No. 67, made the following, obiter dicta, observations: “We cannot leave this judgment without recording this court’s serious concern about the manner and timing of the order for the removal of the appellant from The Bahamas at a time when the executive well knew that Lyons J had fixed a date a little over a month away to hear the appellant’s application.  Further, the executive must be taken to know the law and to have understood that by then the statute conferred a right on both sides to appeal to this court from the grant or refusal of habeas corpus on the kingpin ground and that both sides would have had a further right to appeal to the Privy Council from this court’s decision.  In those circumstances, to have ordered the surrender of the appellant 10 days after the learned judge had fixed a date for hearing the application, is clearly an egregious breach of the statute and is without precedent in this country.”

 

Representation

Effective and equal access to justice is another issue, under Article 20 (2)(d) of the constitution, which needs examination.  This provision guarantees the right to legal representation for accused persons either at expense of the accused or at the public expense.  This provision was intended by the framers of our constitution to provide the secure protection of the law for both affluent and poor persons in The Bahamas.

For most people who appear before our courts in The Bahamas the right to counsel is merely a theoretical right, as most poor people cannot afford legal representation.  One consequence of our failure to provide a properly funded system of legal aid is that the justice or magistrate often has to intervene during the conduct of a trial to assist the unrepresented person with court procedure; thus, delaying the administration of justice and causing significant backlogs in the system.  Further, in criminal matters the registrar is forced to seek out attorneys from the private bar to accept Crown briefs, often at short notice; rather than dealing with the administration of the court and other judicial duties.

The Bahamas has no comprehensive national system of legal aid for indigent persons in both civil and criminal matters before our courts even though we boast one of the highest per capita incomes in this region.  Section 191 of the Criminal Procedure Code Act provides:

In any case in which it appears to the Supreme Court that an accused person committed for trial has no money wherewith to retain Counsel –

(a) if the accused is charged with an offense for which the punishment is death, the court shall assign counsel for the defense at public expense; and

(b) in any other case, the court, in its discretion, may assign a counsel for the defense at the public expense.

In practice, the registrar of the Supreme Court, operating with the limited resources allocated to the judiciary, tries to find lawyers willing to accept a Crown brief to

represent indigent persons primarily charged with murder.  Seldom would the more experienced lawyers from the criminal defense bar accept these Crown briefs; thus, mostly less seasoned criminal defense lawyers often handle such cases.

In other Caribbean countries, such as Jamaica, for example, the more seasoned lawyers, including Queen’s Counsels, from the criminal defense bar eagerly accept Crown briefs and legal aid cases as a part of their professional duty and for the professional challenge.  Because of the limited budget, the registrar cannot offer a Crown brief in most non-capital cases.  Therefore, many poor accused persons who face indictable charges in the Supreme Court are not provided with legal representation, at the public expense, as contemplated by Article 20(2)(d) of the constitution because The Bahamas has not made any legal provision for a public defense and legal aid system.

This state of affairs raises a serious constitutional concern whether unrepresented poor persons facing serious criminal charges receive the constitutional guarantee of due process and the secure protection of the law.

Discrimination against poor people in legal procedures was addressed by Justice Douglas, writing for the majority of the United States Supreme Court, in the case Griffin v. Illinois 351 U.S. 12 (1956): “Due process and equal protection both call for procedures in criminal trials which allow no invidious discriminations.  In criminal trials, the state can no more discriminate on account of poverty than on account of religion, race, color... .  To deny adequate review to the poor means that many of them may lose their life, liberty and property because of unjust convictions which appellate courts could set aside.  There can be no equal justice where the kind of trial a man gets depends on the amount of money he has... ”.

Similarly, the United States Supreme Court in the case Douglas v. California 372 U.S. 353 (1963), per Justice Douglas rejected California’s requirement that an indigent defendant had to first show merit in order to qualify for legal aid.  Justice Douglas reasoned that: “The discrimination is not between possible good and obviously bad cases, but between cases where the rich man can require the court to listen to argument of counsel before deciding on the merits, but the poor man cannot.  There is lacking that equality demanded by the Fourteenth Amendment where the rich man, who appeals as of right, enjoys the benefit of counsel’s examination into the record, research of the law and marshalling of arguments on his behalf, while the indigent, already burdened by a preliminary determination that his case is without merit, is forced to shift for himself.  The indigent where the record is unclear or errors are hidden, has only the right to a meaningless ritual, while the rich man has a meaningful appeal.”

 

What to do

We must ask ourselves in The Bahamas whether, in the absence of a national system of legal aid, indigent defendants facing serious criminal charges must shift for themselves and engage in a meaningless ritual compared to more affluent defendants who can afford to retain effective legal representation.

I maintain that our collective failure to provide a properly funded system of legal aid for indigent defendants and poor persons in criminal and civil matters challenges the constitutional guarantee of procedural justice and fairness.

An effort was made to remedy this situation in 2004 when Prime Minister Perry Christie appointed the Legal Aid Commission, under the chairmanship of Bishop Dr. William Thompson, to enquire into the adequacy of the system of legal aid and advice in The Bahamas and to make proposals for the way forward to improve access to justice.  However, after the general elections of 2007, the government disbanded the commission.

I recommend therefore that the recommendations of the disbanded Legal Aid Commission be reviewed and used as a guide for the establishment of a Public Defender’s Office and Legal Aid Facility, funded from public and private sources, to balance the power and resources that the attorney general, the director of public prosecutions and commissioner of police bring to the prosecution on behalf of the state and to give the indigent defendant and litigant a fair opportunity to defend her or his life, liberty and property.

 

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

Sep 27, 2012

thenassauguardian

Bahamas Independence... ...40 (forty) years later very many of our Bahamian youth are lost in a haze of Jamaican-grown ganja

Forty Years Later

The Bahama Journal Editorial



We shall – in short order – celebrate this fledgling nation’s fortieth Independence anniversary.


And so, we are today conveniently urged to remember that this nation of ours did some four decades ago have leaders who did dream that this nation of ours would or could be under-girded by a fervent desire for the building of a Bahamas where unity is indivisible – “…a Creation under God of the Commonwealth of The Bahamas…”

Sadly, there now seems a decided drifting away on the part of an untold many from these principles.

In their stead, very many Bahamians in now seem hell-bent on violating the spirit that once animated some of our founding fathers and mothers.

As we revert to the Constitution, we are told that, “Whereas Four hundred and eighty-one years ago the rediscovery of this Family of Islands, Rocks and Cays heralded the rebirth of the New World;

“And Whereas the People of this Family of Islands recognizing that the preservation of their Freedom will be guaranteed by a national commitment to Self-discipline, Industry, Loyalty, Unity and an abiding respect for Christian values and the Rule of Law;

“Now Know Ye Therefore: We the Inheritors of and Successors to this Family of Islands, recognizing the Supremacy of God and believing in the Fundamental Rights and Freedoms of the Individual, Do Hereby Proclaim In Solemn Praise the Establishment of a Free and Democratic Sovereign Nation founded on Spiritual Values and in which no Man, Woman or Child shall ever be Slave or Bondsman to anyone or their Labour exploited or their Lives frustrated by deprivation, And Do Hereby Provide by these Articles for the indivisible Unity and Creation under God of the Commonwealth of The Bahamas…”

Would to God were more of our people sufficiently dedicated to nation-building that they would take these words to heart.

But even as we hope, we find ourselves becalmed in a mire of despond.

And as we interrogate the matter at hand, we are slowly but surely coming to the conclusion that some of the distress and [indeed] some of the drift we note now seem rooted in certain demographic trends now surfacing with a vengeance.

Evidently, one of the more interesting facts of life in today’s supposedly ‘modern’ Bahamas turns on the extent to which so very many strangers have made this urban-centered country their home.

Here we refer to that motley mix of Haitians, Jamaicans, Englishmen, Germans, and Americans and [of course] that crowd of Nigerians who work and live in The Bahamas.

These people are making a difference that promises to transform how we regard ourselves and how people around us see themselves as they become safely and deeply-rooted in this new land.

And so today we would suggest that there is probably only a clever few among this nation’s elite who would consider truly genuine some of the troubles very many so-called grass-roots Bahamians have with that motley crew of strangers who settle and work [sometimes illegally] in this country.

While some of these troubles are deeply rooted in the kind of mindless fear many people routinely have of strangers; the fact remains that most of the conflict between these people is grounded in an economy and social order that now seems to discriminate against Bahamians and [on occasion] in favor of these strangers.

This matter is compounded in another very interesting way.

This time around the matter at hand concerns the extent to which very many of those people who work and make their living here are – on occasion – contemptuous of the ways, values, mores and laws under-girding Bahamian civilization.

Indeed, they give every impression that they are only here because they can make an easy dollar, laugh at their unemployed Bahamian counterpart and otherwise enrich themselves and their families ‘back-home’.

Simply put, some Bahamians now understand that they are being taken for a ride; thus intermittent conflicts between Bahamians and any number of these strangers.

On occasion, there is also evidence of a kind of love-hate dynamic between some of these people as in the case of how some grass-roots Bahamians relate to their Haitian and Jamaican peers.

Of note is the fact that some Bahamians are now the direct result of this fervent re-mix that is now transforming Bahamian pedigree.

As a consequence some of our youth have taken to a hot embrace of Jamaican-born Rastafarianism.

In addition, many of them have also taken to ganja as if it was some royal road to bliss, wisdom and understanding; thus some of the troubles our youth routinely have with the authorities.

In conclusion then, this Bahamian reception of Rastafarianism also brings with it a profound anti-establishment ethic; thus leading to a sad, sad conclusion – forty years later very many of our youth are lost in a haze of Jamaican-grown ganja.

September 24, 2012   Jones Bahamas  

Caribbean Blog International

...the proposed gambling referendum could be dead on arrival (DOA)

By Dennis Dames

As the news surfaces about the upcoming gambling referendum and the possible questions on its ballot – one thing is certain, and that is:  the confusion mounts.  Are we going to vote half of the way or the full nine yards on Bahamians gambling in The Bahamas?

Is the referendum going to be about a national lottery, legalizing web shops, casino gambling for Bahamians, or what?  The success of the vote will depend on the ballot menu.

Some Bahamians voters want the whole hog; which is the legalization of all forms of gambling for the native gamblers period.  Others simply want to do their thing in the web shops without having to look over their shoulders for a possible law enforcement raid.  Then, there are those among us who want to play numbers exclusively; whether it’s lotto, lottery, Island Luck, Flowers, Asue Draw and so on and so forth.

Does the government of The Bahamas intends to please all the Bahamian gamblers with the referendum questions or only some?  Is it really fair to still have tourists gambling in certain places and Bahamians in others - when the smoke of the vote is cleared?

Do we actually know what we are doing in relations to the proposed referendum?  I agree that the Christie administration has enough votes in the Bahamian parliament to do whatever they want in regards to the gambling question for Bahamians in The Bahamas.

It looks like the Progressive Liberal Party (PLP) is playing with fire in relations to legalized gambling for Bahamians in their country, as there is no guarantee that the “yes” vote will prevail in the referendum.  If it doesn’t, do Perry Christie and the PLP have the guts to close down every illegal gambling establishment in the country?

I doubt it.

So, it is my view that the PLP government could be setting itself up for a major defeat with their proposed impending referendum on gambling for the Bahamian gamblers in The Bahamas.

It is a grossly false assumption for one to postulate that every Bahamian who gambles in some form or another in these islands - will tow a line on referendum day, and vote yes or no to whatever the questions are – in my humble opinion.  Many Pastors will ensure that their flock is motivated on voting day to defeat the gambling for Bahamians question.

So again I say, that the powers that be - is playing a serious game of political Russian roulette with this gambling matter for Bahamians; which could result in the political demise of the Progressive Liberal Party (PLP).

Be progressive Mr. Christie, and move in the Bahamian Parliament to settle the gambling for Bahamian concerns once and for all.  If tourists could gamble legally in our beloved country, then – we Bahamians must be able to do so too.   There is nothing complicated about this; except to say that the proposed gambling referendum could be dead on arrival (DOA).

Sunday September 23, 2012

Caribbean Blog International

Constitutional reform, pt. 5: ... ...In interpreting the Constitution of The Bahamas, the Court should give a generous interpretation to the constitutional provisions ...and avoid “the austerity of tabulated legalism”... ...In an open democratic society, the protection of human rights is not just the business of judges and lawyers... ...It is everyone’s business... ...As noted by Professor Lung-Chu-Chan, human rights can flourish, only when every member ...and every sector of the community is vigilant in defending and protecting them

Constitutional reform, pt. 5

By Alfred Sears

For the average person in The Bahamas, the most important part of the constitution is chapter III, which deals with the protection of fundamental rights and freedoms of “every person in The Bahamas”.  The constitution makes no distinction between citizens and aliens in relation to fundamental rights.  The fundamental rights, under article 15, are summarized as right to:

(a) Life, liberty, security of the person and protection of the law;

(b) Freedom of conscience, of expression and of assembly and association and;

(c) Protection for the privacy of his home and other property without compensation.

The rights, through articles 15 through 28, are stated broadly followed by varying degrees of exceptions or derogation clauses.  These provisions are known as the Bill of Rights.  The guarantees provided under the Bill of Rights are not static, but represent a continuing process of judicial decisions from the past to the present, in protecting our fundamental values of human dignity.  These guarantees are so highly cherished that they are deeply entrenched in our constitution; they can only be changed, pursuant to article 54 (3), through three quarters of all members of each house of Parliament and by a majority vote in a referendum of the Bahamian electorate.  The Bahamian Bill of Rights is part of the global development of international human rights law.

The Constitution of The Bahamas, like the constitutions of other Commonwealth Caribbean countries, was patterned after the Nigerian Independence Constitution and Bill of Rights of 1957, which itself was patterned after the European Convention for the Protection of Human Rights and Fundamental Freedoms of 1953.

 

Emergence of international human rights law

Before World War II how a government treated its own citizens was a matter of purely national concern.  The individual citizen was not considered a proper subject of international law.  However, the treaties concluded by the Allied countries with Germany, Italy, Japan and the Central European countries following World War II imposed obligations to respect human rights.

In the Nuremberg trials, political and military leaders who had acted in the name of the state were held personally responsible and punished for crimes against humanity.  For the first time national leaders were held accountable to an international tribunal for how they had treated their own citizens.

International human rights law was further strengthened by the international human rights conventions ratified after World War II.  For example, the preamble of the United Nations Charter states: “We the peoples of the United Nations determine to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and to reaffirm faith in fundamental human rights, in the dignity of the human person, in the equal rights of men and women and of nations large and small, and to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained, and to promote social progress and better standards of life in larger freedom... .”

The charter, in article 1, sections 2 and 3, state the purposes and principles of the United Nations are: “2. To develop friendly relations among nations based on respect for the principles of equal rights, self-determination of peoples, and to take other appropriate measures to strengthen universal peace.

“3. To achieve international cooperation in solving international problems of an economic, social, cultural or humanitarian character, and in promoting and encouraging respect for human rights and for the fundamental freedoms for all without distinction as to race, sex, language, or religion.”

Furthermore, article 55 states: “With a view to the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, the United Nations shall promote: ...c. universal respect for, and observance for, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.”

Article 56 posits a general obligation for member states to enforce human rights: “All Members pledge themselves to take joint and separate action in co-operation with the organization for the achievement of the purposes set forth in article 55.”

The term “pledge” in article 56 has been interpreted by the International Court of Justice, in its 1971 Namibia Judgment (1971 I.C.J 16), to mean that member states of the United Nations have accepted an international obligation to observe the Global Bill of Human Rights and that the provisions of the charter of the United Nations Charter are directly binding on member states.

This international observance of and respect for human rights is assumed as a necessary condition for international peace and security.  This assumption is also reflected in the Universal Declaration of Human Rights, the International Convention on the Elimination of All Forms of Racial Discrimination of 1965, the International Covenant on Economic, Social and Cultural Rights and International Covenant on Civil and Political Rights.  Professors McDougal and Riesman have argued that the Universal Declaration, in particular, is now jus cogens, or part of customary international law.  The Bahamas, since its independence on July 10, 1973, has ratified all of these instruments and, therefore, has an obligation under international law to observe the human rights standards established by these international instruments.

Professors McDougal, Lasswell and Chen in the book “Human Rights and World Public Order” have posited that these instruments constitute a global bill of human rights that are now part of customary international law and reflect basic international community policies of the world constitutive process, crystallized in a norm of non-discrimination.

 

Enforcement of the bill of rights

Under the Bahamian Constitution, the Supreme Court is given plenary powers to issue orders, writs and directions it may consider appropriate for the enforcement of the Bill of Rights.  Article 28(1) provides: “If any person alleges that any of the provisions of articles 16 to 27 (inclusive) of the of the constitution has been, or is being or is likely to be contravened in relation to him then, without prejudice to any other action with respect to the same matter which is lawfully available, that person may apply to the Supreme Court for redress.”

Therefore, the Supreme Court, through the power of judicial review, is the ultimate guardian of the freedoms and rights of the individual in The Bahamas and the arbiter of the meaning of the constitution as the supreme law of the land.

The court, informed by this evolving international human rights law, has to give vitality and meaning to constitutional provisions, which are framed, in a high level of generality.  Through judicial interpretation, therefore, that the constitution becomes a living document, constantly evolving in response to the changing circumstances, needs and demands of the Bahamian society.  The Privy Council has constantly held that our courts should take a contextual, rather than a textualist, approach in interpreting and applying constitutional provisions to concrete cases.

The Privy Council in the case Ministry of Home Affairs v. Fisher (1980) AC 319 held that our courts should have full regard for this evolving international human rights law when interpreting our Bill of Rights.  In this case, a Bermudian man had married a Jamaican woman who brought her children, who had been born out of wedlock, to Bermuda.  Under the Bermudian Constitution, a stepchild of a citizen was entitled to Belonger status.  The Crown contended that an illegitimate person could not benefit under the stepchild provision because there was a legal presumption that the word “child” in legislative and other formal documents connotes “legitimate child”.

Lord Wilberforce, writing for the majority of the Privy Council, reasoned that since the Constitution of Bermuda was influenced by the human rights norms in the European Convention for the Protection of Human Rights and Fundamental Freedoms, the United Nations Declaration of Human Rights and the fact that the Bermudian Constitution uses the phrase “every person” in its Bill of Rights enabled the conclusion that the term “child” meant any child and was not restricted to legitimate child.  Specifically, Lord Wilberforce held that: “...Chapter I is headed ‘Protection of Fundamental Rights and Freedoms of the individual’.  It is known that this chapter, as similar portions of other constitutional instruments drafted in the post-colonial period, starting with the Constitution of Nigeria, and including the constitutions of most Caribbean territories, was greatly influenced by the European Convention for the Protection of Human Rights and Fundamental Freedoms.  That convention was signed and ratified by the United Kingdom and applied to dependent territories including Bermuda.  It was in turn influenced by the United Nations Universal Declaration of Human Rights 1948.  These antecedents, and the form of Chapter I itself, call for a generous interpretation avoiding what has been called ‘the austerity of tabulated legalism’, suitable to give to individuals the full measure of the fundamental rights and freedoms referred to.”

In interpreting the Constitution of The Bahamas, the Court should give a generous interpretation to the constitutional provisions and avoid “the austerity of tabulated legalism”.  In an open democratic society, the protection of human rights is not just the business of judges and lawyers.  It is everyone’s business.  As noted by Professor Lung-Chu-Chan, human rights can flourish, only when every member and every sector of the community is vigilant in defending and protecting them.

Over the course of the next several articles of this series, I will examine and critically appraise the individual rights and freedoms of our Bill of Rights and make certain recommendations for reform for the expansion and the more effective protection of our fundamental rights, consistent with the evolving global Bill of Rights.

 

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

Sep 20, 2012

thenassauguardian

The Honorable Paul Lawrence Adderley, a committed Anglican and a man of deep faith ...chose instead the path of national service; one which ultimately would assure that his labor would not be in vain

A tribute to Paul Adderley

Dear Editor,

 

The Honorable Paul Lawrence Adderley, was one of the two children of A.F. Adderley, a well-known and highly esteemed Bahamian lawyer.  Adderley was born in 1928, a time when there was not a large cadre of Bahamian professionals and few black Bahamian lawyers.  Especially being a graduate of Cambridge University and a U.K. trained barrister, he could have chosen to dedicate his life to private practice and to making a lot of money.  Indeed, had he chosen the private practice life, his law firm would probably today have been one of the leading law firms in The Bahamas, if not the leading law firm in The Bahamas.

Adderley, a committed Anglican and a man of deep faith, chose instead the path of national service; one which ultimately would assure that his labor would not be in vain.

Recognizing that politics is a noble profession and a significant means by which there can be fundamental transformation of a society for the benefit of all, he joined the movement to universal suffrage, self-government, majority rule and independence.  He was the longest serving attorney general in The Bahamas, as well as serving in other critical Cabinet portfolios and as acting governor general.  His stellar tenure as attorney general has not been forgotten.

He was at the genesis of the first “third political party”, the National Democratic Party.  He was at the vanguard of the fight for a thriving democracy in The Bahamas.  Certainly, history will record Adderley as one of The Bahamas’ founding fathers and the nation will forever be grateful for his tremendous sacrifices.

I celebrate and am thankful for the living example of Adderley’s commitment to family, his unquenchable thirst for knowledge, his spirit of excellence, his loyalty to friends and his work to accomplish his vision of The Bahamas as a home of and for the brightest and the best.  He believed that The Bahamas is the “best little country in the world”.

Deepest sympathy and prayers are extended to his wife, Lillith Adderley, and his daughters, Catherine, Roseanne and Paula who have lost a husband and father.  The Bahamas has lost one of its brightest and best.  May his soul rest in peace.

 

– Allyson Maynard-Gibson, attorney general

Sep 20, 2012

thenassauguardian

Prime Minister The Rt. Hon. Perry G. Christie Pays Tribute to the late Paul Laurence Adderley

I am deeply saddened by the news of the passing this morning of one of our nation’s finest sons, my very dear friend, confidante and political colleague of many years, the Honourable Paul Laurence Adderley. This is a grave loss for our country, for myself personally, and for the many thousands of Bahamians whose lives were touched by this truly remarkable human being and nationalist over the course of his more than forty years of distinguished service to the Bahamian people. Mr. Adderley was a man of extraordinary intellectual brilliance. His accomplishments were legion. Indeed it is quite impossible to overstate the importance of his many and varied contributions to the development of our nation.

As the longest serving Attorney-General of the 20th century – a period spanning some 17 years – Mr. Adderley engineered the transition of our colonial legal system into a new era of constitutional sovereignty while overseeing the modernization of our laws in so many vital areas of national life. In so doing, he also expanded the judiciary and helped deepen the Rule of Law as the bedrock of our civilization. As Minister of Foreign Affairs, Mr. Adderley was the primary architect of the nation’s foreign policy in the founding years of nationhood; a foreign policy based on mutual co-operation and friendship with our neighbours but always within the context of the principles of self-determination and sovereign independence. Mr. Adderley was absolutely determined that The Bahamas, though small, should preserve its integrity as an independent nation and never allow itself to be subjugated to any foreign power.

As Minister of National Security, Mr. Adderley was a courageous warrior against drug-trafficking. He was chiefly responsible for a wide range of anti-drug trafficking measures, including the OPBAT joint interdiction operations; the negotiation of mutual legal assistance treaties; and the introduction of a raft of new laws aimed at curbing the drug trade and bringing traffickers to the bar of justice. Concurrently, Mr. Adderley was responsible for sweeping changes to both the Royal Bahamas Police Force and the Royal Bahamas Defence Force aimed at better equipping them to discharge their law enforcement mandates in the face of newly emergent crime threats.

As Minister of Education, Mr. Adderly also achieved notable successes. He introduced a raft of initiatives aimed at raising academic standards in the public school system. He restricted social promotion exercises and instituted the BGCSE examination system. He was also instrumental in expanding the Government’s building programme for new schools while instituting the Cadet Programme as a means of better preparing high school students for the transition into responsible life in the wider community. As Minister of Finance, Mr. Adderley steered the country through the extremely difficult recessionary years of the very early 1990’s, insisting on austerity and fiscal discipline as a means of surviving the crisis. That Mr. Adderley was able to rise to this challenge while privately battling both cancer and heart disease makes it even more awe-inspiring. No finer example of patriotic commitment is to be found in the annals of the modern Bahamas. But even beyond his immense achievements as a minister of the government from 1972 to 1992, Paul Adderley will also be remembered as a leader of the Bahamas Bar for nearly 60 years. He was an advocate of incomparable skill admired by all his colleagues for the depth of his learning, the thoroughness of his research and preparation, his powerful intellect, his spellbinding oratory and, most important of all, his adherence to the highest standards of ethical propriety in all his professional dealings. He was, like his father before him, the Hon. A.F. Adderley, a lawyer of truly legendary standing at the bar.

As a parliamentarian from 1962 to 1967 and then from 1972 to 1997, Mr. Adderley was always a fiery and meticulously prepared debater, whether in the House of Assembly or the Senate. Uniquely, he was the fourth consecutive generation of his family to serve in the Bahamian legislature, having been preceded by his father, the Hon A.F. Adderley; and before that, by his grandfather, Wilfred Parliament Adderley; and earlier still by his great grand-uncle, William Campbell Adderley who was a member of the House of Assembly more than 130 years ago. Faithful to this dynastic tradition, Mr. Adderley enlarged upon the accomplishments of his forebears and always gave an excellent account of himself in the halls of Parliament. Following his retirement from frontline politics, Mr. Adderley continued to serve our country in a variety of ways, most notably as the Co-Chairman of the first Constitution Commission. Even with all of the foregoing to the credit of his name, Mr. Adderley regarded his own family as his finest achievement. He was a family man for whom nothing was more delightful than the time spent with his devoted wife and daughters.

Finally, it needs be said that Mr. Adderley was the very embodiment of personal integrity. He was absolutely incorruptible. He was a public servant of the highest order. And yet he shunned all honours. He refused to even consider taking a knighthood when it was offered to him and reacted in the same way whenever any other honour was offered to him over the years. For Paul Adderley, the greatest honour of all – and the only one that really mattered – was the opportunity to serve the Bahamian people to the very best of his ability. And he did precisely that – with great distinction – for all his adult life. On behalf of the Government and people of The Bahamas, the Progressive Liberal Party of which Mr. Adderley was a long and faithful member and a Stalwart Councillor, on behalf of my wife, Bernadette, and on my own behalf, I extend deepest condolences to Mr. Adderley’s widow, Lilith, and their three children, Catherine, Roseanne and Paula. A State Funeral will be held for Mr. Adderley, details of which will be announced shortly by the Cabinet Office.

September 19, 2012

myplp.org

Caribbean Blog International

Political victimization in The Bahamas... ...as John Marquis concurs with Dennis Dames

Questions For John Marquis


 

EDITOR, The Tribune:




As we near the fortieth anniversary of independence, I too am saddened like John Marquis that some things never change. Mr. Marquis believes that the “PLP’s taste for intimidation and victimization appears to be one of them.” He wrote as much in his op ed, Marquis At Large” that was published in The Tribune on the 15th September 2012.

He went on to opine about the “redeployment” of senior staff at ZNS, playing favourites and loathsome practices within the government and government controlled corporations.

In my opinion, he sought to rewrite history and reflect the PLP government in a negative light while giving the FNM government a wink, a nod and a pass. This position is widely believed to be the official editorial policy of The Tribune.

I have this proposition and a few questions for John Marquis: Within one month of forming the government on 2nd May 2007, the FNM government released six employees from their contracts at the Bahamas Information Services (BIS). For the record, they were Gregory Christie and the late Dudley Byfield from the Grand Bahama office and Luther Smith, Al Dilette, Marlon Nichols and Steve McKinney from the Nassau office. In doing so did the FNM displayed “a taste for intimidation and victimization” as Mr Marquis so eloquently attributes to the PLP government? Was this FNM policy decision “indeed a sad and depressing state of affairs” as Mr. Marquis concurred it was as he echoed the sentiments of Guardian commentator Dennis Dames? Yes, Mr. Marquis, some things never change.

Further, Mr. Marquis had a platform in 2007 to revisit “the history of political victimization” in The Bahamas as he now finds it so convenient to do. In 2007, there was no outrage, no weeping, no wailing, no gnashing of teeth and no righteous indignation expressed over the unceremonious dismissal of our six fellow Bahamian brothers in what many believe to be part of a politically motivated purge of the public service by the strong arm of the FNM government.

Perhaps Mr. Marquis would want to dig deep and find an appropriate adjective to describe the actions of the then FNM government in the interest of fairness and balance. Does he have the journalistic integrity to direct some of the venom and invective (he ostensibly reserves for the PLP) at the policies and practices of the FNM, policies and practices he appears hell bent on excusing, winking at and looking that other way when chastisement was the appropriate response? Again he should do so in the interest of fairness and balance.

In the end I issue the same challenge to the leadership of the FNM as Mr. Marquis issues to Prime Minister Christie. I hope that the next FNM government “can summon the courage to outlaw victimization forever…for the nation’s sake.”

ELCOTT COLEBY

Nassau,

September 17, 2012

Tribune 242

Caribbean Blog International