Constitution Questions
By SANCHESKA BROWN
CHIEF Justice Sir Michael Barnett met with the members of the Constitution Commission yesterday to advise them on what issues they should discuss over the next six months.
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Constitutional reform Pt. 7
By ALFRED SEARS
In June 1998 in an address at the Colloquium on Political Reform, Constitutional Change and National Development at The College of The Bahamas, the Rt. Honorable Sir Lynden Pindling — after 25 years as head of government and 19 years as prime minister of an independent Commonwealth of The Bahamas — advocated that the fundamental rights provisions of the Bill of Rights of the Bahamian Constitution should be expanded in the following terms:
“Experience has taught me that the list of fundamental rights and freedoms set out in Chapter 3 of the existing constitution should be expanded to include matters such as:-
(1) The right of a citizen to vote and the right to the equal exercise of political choice.
(2) The right of a citizen to a passport.
(3) The right of a citizen to secondary education.
(4) The right of a citizen to good health and a clean environment.
(5) The right of a citizen to seek and obtain public information.
(6) The right of a citizen to equal access to opportunity.
(7) The right of a citizen to be free from fear and from victimization
(8) The right of a citizen to fair competition.
“All the laws of The Bahamas, both old and new, should then be required to pass the litmus test of the revised constitution and any Bahamian citizen who wishes to institute proceedings to defend or enforce any of the rights and freedoms should be able to do so without having to obtain the prior consent of the attorney general.”
Right to vote
Many Bahamians trace the birth of the modern Bahamas to the grant of universal adult suffrage in 1960, when women were given the right to vote and right to sit in the legislature.
The exercise of the right of every adult citizen to vote in an election of members of the House of Assembly and the right to be qualified for membership therein led to majority rule in 1967 and widened the participation of Bahamians, of all class and racial background, in the governance of The Bahamas. It is this participation in the selection of the government, more than any other right, which guarantees Bahamians a democratic government.
General elections are the source of the democratic origins of governments in The Bahamas, as an expression of the general will of the Bahamian citizens, yet the right to vote is not presently entrenched in the constitution. Although it is implicitly recognized in the constitutional provisions governing the functions of the House of Assembly and the Constituencies Commission. Under our constitution the right to vote is not included in the bill of rights as a fundamental right.
The Parliamentary Elections Act, 1992 is the principal basis upon which the right to vote is established. Under Section 8 of the Parliamentary Elections Act, a person is entitled to be registered as a voter for a constituency if, on the day of registration:
+(a) he is a citizen of The Bahamas of full age and not subject to any legal incapacity; and
(b) he is, and has been during the whole of the period of three months immediately preceding that day, ordinarily resident in premises in that constituency.”
Section 9 provides that every person who is “registered as a voter in any polling division in any constituency shall be entitled to vote at that polling division at an election in that constituency, provided that on the day of election, the person is a citizen of The Bahamas of full age and not subject to any legal incapacity and, the case of a person who is registered as a voter in a polling division in that constituency, he is, or has been at some time during the period of one year immediately preceding that day, ordinarily resident in premises in that constituency”. Legal incapacity is defined in the act as a person who is serving a sentence of imprisonment imposed by a court of law, under a sentence of death, or one who is deemed to be a lunatic or of unsound mind.
While the right to vote is not entrenched in the constitution, Bahamian voters perceive the right to vote as a fundamental right, reflected in consistent massive voter turnout since independence. For example, the voter turnout for the May 7, 2012 General Election was 155,948 or 90.6 percent of the total registered voters of 172,128, and in the March 14, 1997 General Election 93 percent of the Bahamian electorate, or about 129,000 voters, voted. The political practice of the Bahamian people demonstrates that the right to vote is treated as a fundamental democratic right.
I recommend, therefore, that we amend our constitution to provide an entrenched constitutional right of every citizen to vote in an election of members of the House of Assembly and the right of every citizen to be qualified for membership therein as a fundamental right, subject to such exceptions and considerations as may be reasonable in a democratic society.
Secret political campaign contribution
In early 1966, the then opposition Progressive Liberal Party charged that the then governing United Bahamian Party was maintained in power by gerrymandered constituencies, strong conflict of interest in the operations of ministers and that some ministers were in the pay of shady casino operators active in Grand Bahama.
In that same year, the Wall Street Journal alleged that the premier and the speaker of the House had received “consultancy fees” from certain Grand Bahama casino operators who at the time were reputedly under the influence of Meyer Lansky of Miami Beach. The paper alleged that Sir Stafford Sands had received “consultancy fees” in excess of millions of dollars for using his political influence for legalizing casino gambling.
After the Progressive Liberal Party came to power in the general election of 1967, a Commission of Inquiry (“the Bacon Commission”) was appointed in April 1967 to investigate irregularities over the casino concessions.
The Bacon Commission confirmed the allegations that had appeared in the Wall Street Journal. With respect to Sir Stafford Sands, the Commission reported that the legal fees paid to him for expediting the Freeport Casino licence was “even by Bahamian standards, out of proportion to the legal services he rendered … the enormity of the fee demanded and the speed and a manner with which payment was affected, coupled with every circumstance of his handling of this application leave … no doubt that he was selling his services primarily as an influential member of the Executive Council and not as a lawyer.” The commission detailed a pattern of secret financial contributions by foreign investors to Bahamian political parties.
After the Bacon Commission was debated in the House of Assembly, a Progressive Liberal Party sponsored resolution was passed. It alleged that Sir Stafford Sands, a former United Bahamian Party minister, a senator and three members of the United Bahamian Party, including the former speaker, were “guilty of a crime against the people of The Bahamas”.
The issue of secret campaign contributions to our political directorate was again raised, 17 years later, in the Commission of Inquiry in to the Illegal Use of The Bahamas for the Transshipment of Dangerous Drugs, in 1984. The findings of the commission resulted in significant erosion in the brand and reputation of The Bahamas. If we were to have a Commission of Inquiry today to investigate the role of secret campaign contributions to our political parties would there be the same result as the Commissions of Inquiries of 1967 and 1984?
The Bahamas acceded to the United Nations Convention against Corruption on January 10, 2008. Pursuant to Chapter II, Article 7 (4) of this convention, The Bahamas accepted an international obligation to make good faith efforts to “enhance transparency in the funding of candidatures for elected public office and, when applicable, the funding of political parties”.
In light of this international obligation and the current political campaign practices, The Bahamas runs the risk of being listed again by multilateral agencies for lack of transparency in its political process, which will result in the further erosion of the global brand and reputation of The Bahamas.
In its May 21, 2012 report, the CARICOM Electoral Observer Mission of the General Election of May 7, 2012, recommended that “consideration should be given to implementing laws to govern campaign funding focusing on (a) source of funds; (b) use of funds; and (c) limits on expenditure.”
They proposed that “such legislation would (i) lessen the risk that those who contribute funds will control the elected representatives they finance; (ii) eliminate the risk that illicit money can corrupt the system and undermine the rule of law; (iii) improve the chances of persons without money or access to money but are interested in running for office; and (iv) reduce the risk of large sums of money in election campaign giving undue advantage to some candidates and constrain competition.”
Financial contributions provide political parties with the means to quickly travel the length and breadth of the archipelago and orchestrate large conventions, rallies and distribute expensive posters, handbills, shirts and purchase ads in the media, etc. This can project the appearance of momentum which will influence the voters. However, the long-term effect of secret campaign contributions will be voter cynicism arising out of a general impression that the political process is corrupt and/or favors foreign investors and other secret donors.
I, therefore, recommend that we amend our constitution to provide for the public funding of national elections, with appropriate legislation to establish a system of public campaign financing to better secure the right to vote, reduce corruption of the political process and increase competition by independent candidates and small parties.
• Alfred Sears is an attorney, a former member of Parliament and a former attorney general of The Bahamas.
Oct 04, 2012
A progressive approach to the insurance industry is necessary
By CFAL Economic View
In 2011 the ICB made significant steps forward re-designing the solvency framework used by long term life insurers in The Bahamas. However, further reforms are required to protect policyholders and to help strengthen the financial situation of life insurance carriers.
We support insurance reforms that are aimed at ensuring strong reserves and capital adequacy which recognize and account appropriately for the relative risk inherent in an insurer’s operations and level of product guarantees. We also support reforms and policies which also allow for good risk management through appropriate assets and liability cash flow matching.
In particular, high quality long-term fixed investments are essential for insurance system stability in order to prevent or at least limit the emergence of serious market distortions. These long-term fixed assets are key to protecting the strength of a life insurer against changes to interest rates, but they are in short supply in The Bahamas and it is critical that the situation be addressed shortly.
Traditional insurance products offer long-term protection to policyholders with fixed guaranteed coverage for periods that can exceed 50 years. In most economies, in order to provide this long-term protection, insurance companies rely on the availability of high quality long-term fixed income assets to manage the risk inherent in offering this level of protection. That is, the matching of fixed asset cash flows to the expected long-term liability associated with policyholder benefit payments is the optimal strategy to manage the risk in offering traditional life insurance and annuities.
A sound insurance carrier would spend a large amount of actuarial resources trying to optimize its mix of assets to match the policyholder benefit payments.
Unfortunately, Bahamian insurers are at a real disadvantage, as they are restricted to local investments, from which the availability of high quality long-term fixed rate bonds is extremely limited.
Given the proposed changes to the international accounting framework which all Bahamian insurers will have to follow, the limited access to long-term fixed investments will become a serious limitation that cannot be ignored by insurers, the regulator and the Bahamas government.
The potential solutions include giving insurers more access to foreign fixed investments and/or the Bahamian government offering fixed rate debentures. However, there must be sufficient political and regulatory consensus supporting these measures which are needed to ensure sound insurance markets.
• CFAL is a sister company of The Nassau Guardian under the AF Holdings Ltd. umbrella. CFAL provides investment management, research, brokerage and pension services. For comments, please contact CFAL at: column@cfal.com
Oct 03, 2012
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