Constitutional reform pt. 9: ... ...The current development strategy in The Bahamas, industrialization and modernization ...by inviting foreign direct investment by large multinational resorts and financial institutions, some of which employ thousands of Bahamian workers ...require a redefinition of trade unions in accordance with International Labor Organization (ILO) Conventions 87 and 98 ...in order to achieve a better balance of power between capital and labor in The Bahamas

Constitutional reform pt. 9

By Alfred Sears

The freedom of assembly and association are two fundamental rights which have shaped the contemporary political culture of The Bahamas.  The right of every person to assemble and demonstrate in public places and the right to associate with others by forming and joining political parties and trade unions are seen as basic aspects of democracy in The Bahamas.  The Constitution guarantees these rights under Article 24 which provides that:

1. Except with his consent, no person shall be hindered in the enjoyment of his freedom of peaceful assembly and association, that is to say, his right to assemble freely and associate with other persons and in particular to form or belong to political parties, or to form or belong to trade unions or other associations for the protection of his interests.

2. Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this article to the extent that the law in question makes provision –

(a) which is reasonably required –

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

(ii) for the purpose of protecting the rights and freedoms of other persons; or

(b) which imposes restrictions upon persons holding office under the Crown or upon members of a disciplined force, and except so far as that provision or, as the case may be, the thing done under the authority thereof is shown not to be reasonably justifiable in a democratic society.

 

Right to assemble

In the Caribbean we have long appreciated the right of coming together in public meetings, processions, marches, demonstrations, picketing to express our views and make political, social and cultural representations.  In The Bahamas these methods of collective representation were pivotal means of political expression during the anti-colonial struggle, the struggle for majority rule and protest by trade unions against the privatization of BTC.  These methods of representation have been recently used by political parties, trade unions, women’s organizations, churches and religious organizations and youth association to express public protests and petitions on various issues.

The guarantee of Article 24 includes the right of every person in The Bahamas to engage in collective or individual public demonstrations as a method of expressing political views and influencing others.  Thus, we have the right individually and collectively to use the roadways for the purpose of passing and repassing, for the exercise of this right of assembly, provided it is exercised reasonably and without reckless disregard for the rights of others.

Restraint by the state in the exercise of the fundamental right of assembly usually takes the form of public order restraint or regulation of public meetings and public places, through a system of permits or licences, usually obtained from the commissioner of police.  Usually, the requirements of obtaining permission or giving notice of public meetings are not applicable prior to and during elections.

The commissioner of police does not have an unfettered discretion in determining whether to grant an application or not.  In exercising this discretion, the commissioner of police may prohibit the meeting if he reasonably apprehends a breach of the peace, public order or national security.  The factors to be considered are the time, purpose of the meeting and the circumstances in which it is to be held.  These criteria are the objective bases for the exercise of the discretion to grant or refuse an application.  It would therefore be improper for the commissioner of police to refuse an application purely on the instructions of the prime minister or the minister of national security or on the basis of any partisan political consideration.

 

Right to form or belong to a trade union

Article 24 of the Constitution guarantees the right to every person in The Bahamas to form and belong to a trade union for the protection of her or his interests.  This right has been construed by Chief Justice Hugh Wooding, under a similar provision of the Constitution of Trinidad and Tobago, in the case Collymore v. A.G. (T & T) (1967) 12 W.I.R. 5 as follows: “Freedom of association means no more than freedom to enter into consensual arrangements to promote the common – interest objects of the associating group.  The objects may be any of many.  They may be religious or social, political or philosophical, economic or professional, educational or cultural, sporting or charitable.  But the freedom to associate confers neither right nor license for a course of conduct or for the commission of acts which in the view of the Parliament or inimical to the peace order and good government of the country.”

This restrictive judicial construction of the right of association appears to subject the right of association to legislative judgments of which are in the best interest of the country.  This definition also fails to clarify whether the objectives of association and the means of achieving them are protected as part of the meaning and function of the right of association.  Therefore, there is no constitutional right to strike, even though there is an actual enjoyment of the power to strike, based on the immunities created by the Industrial Relations Act, 1970.  Further, common law strikes were not treated as criminal action, Crofter Hand Woven Harris Tweed Co. v. Veitch (1942) 1 All E.R. 142.

On the other hand, the freedom not to belong to a trade union is also a part of the freedom of association, TICFA & A.G. v. Seereeram (1975) 27 W.I.R. 329.  Every person has the liberty to freely exercise her or his conscience in determining whether to join a trade union or not.

 

Restrictions on the right to form or belong to a trade union

Under Article 24(2)(b) of the Constitution, public officers and members of a disciplined force may be restricted in their enjoyment of the freedom of association.  Article 30(1)(b) of the Constitution defines “disciplined force” as including “a naval, military or air force; the police force of The Bahamas, the prison service of The Bahamas and any other force or service specified by act of Parliament to be a disciplined force…”.  Under Section 3 of the Industrial Relations Act, the right to register a trade union and engage in collective bargaining does not apply to members of a disciplined force.

It is instructive to note that in Europe, the United States as well as other parts of the Caribbean, police and prison officers are allowed to form and belong to trade unions which has resulted in the improvement in working conditions and increased professionalism on the police and prison services in these countries.  Given the present challenges on the police and prison services in The Bahamas, is it good public policy to maintain the present blanket prohibition on collective bargaining rights to police and prison officers?

In spite of the clear constitutional guaranteed right to form or belong to a trade union, and the right of collective bargaining contained in the Industrial Relations Act, it is not uncommon for employees in The Bahamas to meet subtle and sometimes not so subtle obstruction and intimidation by some employers to the exercise of this right by employees.

The Code of Industrial Relations Practice, at Code 55, states that, “It is in the best interest of employees that there be strong and effective trade unions”.  Notwithstanding the law and clear public policy in favor of trade unions and the tripartite partnership of capital, labor and government, there is still a perception amongst employers and senior managers in both private and public sector enterprises that trade unions should be avoided or discouraged.

Perhaps the negative perception of trade unions among some employers is due to the almost total reliance of the past generation of trade union leadership on public demonstrations, pickets and extravagant public salary demands as the means of negotiation.  The current group of union leaders, most of whom are also qualified labor advocates, are more skillful at the bargaining table, utilizing economists, accountants and lawyers as consultants.  Also, today the bargaining issues are more broadly defined to include training, health care systems, skills enhancement, retooling, social programs for workers, worker productivity and security.

Section 3 of Part II of the First Schedule of the Industrial Relations Act restricts membership in a trade union to a person who has been “regularly and normally employed in the industry, or as a member of the craft or category of employee, which the union represents.”  This definition of unions by craft or category of employment has led to the creation of many small unions.

Sir Lynden Pindling, in the Colloquium on Political Reform, Constitutional Change and national Development, sponsored by The College of The Bahamas on June 23, 1998, stated that, “I think national trade unions need to be encouraged now so that they may better balance the scale with the conglomerates and monopolies, not all of which are avoidable in a small archipelagic country.”

Many trade unionists have advocated that Convention 87 and 98 of the International Labor Organization should be adopted and fully implemented in The Bahamas which would allow the creation of national trade unions in which membership is not restricted to craft or category of employment in order to balance the power between capital and labor.

 

Recommendation

The restriction on the exercise by police and prison officers of the right to form and belong to a trade union should be removed from the Constitution and the Industrial Relations Act.  Police and prison officers should be able to exercise the right of association, including the right to form and belong to a trade union, even if the right to strike is conditioned or withheld.  The exercise of this right by police and prison officers will lead, I believe, to an improvement of working conditions and professionalism in both services which will better secure public order and the security of the Bahamian state.

The current development strategy in The Bahamas, industrialization and modernization by inviting foreign direct investment by large multinational resorts and financial institutions, some of which employ thousands of Bahamian workers, require a redefinition of trade unions in accordance with International Labor Organization Conventions 87 and 98, in order to achieve a better balance of power between capital and labor in The Bahamas.

 

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

October 18, 2012

thenassauguardian

Caribbean Blog International

Constitutional reform, pt. 8: ... ...The right of a citizen to good health and a clean environment

The Looming Gambling Referendum: ... ...President of the Bahamas Christian Council (BCC), Dr Ranford Patterson has accused the government of failing to take a position on the issue of legalized gambling for Bahamians in The Bahamas... ...he felt it was because government members fear that the impending gambling referendum could fail

PM: Gambling Referendum Will Have Many Components

By Sasha Lightbourne
The Bahama Journal



The gambling referendum, which is expected to be held before the end of the year, will have many components to it, according to the prime minister.

Perry Christie told The Bahama Journal recently that he is considering a lottery component as well as casino regulations, which will all be part of the referendum when announced.

“I’m having detailed discussions with my advisors and we are doing this on all fronts with respect to improving and strengthening casino regulations and the kind of games they play and making us more competitive,” he said.

“At the same time we are focusing on the web operations as well. When I make the next communication it’s going to be a very serious one based on the concerns that my advisors have with respect to web operations especially if they are not regulated. I most certainly want the referendum to be held before the end of the year as well. I’m not changing that.”

Mr. Christie added, however, that he is concerned about the lottery component of the referendum.

“The only question I have is whether I have a working situation with the lottery,” he said.

“Is it feasible, given the size of our population and having to depend on the Americans, to do it because if it does that would mean they would take the money back to the United States. There is a compelling necessity though to do something about this issue and it will happen before 2013.”

President of the Bahamas Christian Council (BCC), Dr Ranford Patterson has accused the government of failing to take a position on the issue of gambling.

He said he felt it was because members fear that the impending gambling referendum could fail.

So far, the government has declined to publicly state a position on the matter.

All it has said is that the Bahamian people will be allowed free choice to vote for or against gambling.

Rev. Patterson has said, however, that in the lead up to voting, the BCC plans to clearly repeat its anti-gambling argument.

“The government needs to make a decision and state their case,” Rev Patterson said a few weeks ago.

“Let’s say this referendum is a disaster, who is going to take the responsibility for wasting taxpayer dollars and wasting time that could have been used on other more important things in this country. If this is such a major issue just do it.”

The BCC president said the government should also take note of the long term implications of gambling that could cause thousands of Bahamians’ regrets if the referendum did return more “yes” than “no” votes.

19 October 2012

Jones Bahamas

Caribbean Blog International

The Bahamas 2010 Census Report: ... ...the census report makes note of the first census in 1722 ...whereby 74 percent of the population was white and 26 percent black... compared to the 2010 census ...whereby 91 percent identified themselves as black, five percent white, and two percent as of mixed race... ...Such an extreme reorientation of the racial makeup of a country identifies the need to reexamine assumptions about who we are

The Bahamas in numbers

thenassauguardian editorial

Our census, a vital and complicated undertaking, describes the identity of The Bahamas through numbers.  It is also indicative of trends and analysis of data based on successive census reports.

For The Bahamas this not only means comparison on a regional scale, but also between our islands.  Remarkably, this is the 19th decennial census to be conducted in The Bahamas.  Early census counts are not likely to be comparable to recent data due to likely discrepancies in survey methods, but they nonetheless provide value to the history of The Bahamas.

Interestingly, the census report makes note of the first census in 1722 whereby 74 percent of the population was white and 26 percent black, compared to the 2010 census whereby 91 percent identified themselves as black, five percent white, and two percent as of mixed race.  Such an extreme reorientation of the racial makeup of a country identifies the need to reexamine assumptions about who we are.

Population statistics are perhaps the most widely recognized outcome of a census.  For those living in New Providence, it is all too obvious that the island accounts for 246,329 people or 70 percent of the total Bahamian population.  With an additional 35,497 people since 2000, it is all too apparent that the roads are more congested, lines a bit longer, and the housing prices just a bit higher.

But herein lies the importance of data availability.  While New Providence may have experienced the greatest increase in people, several other islands had a much higher percent change in population growth – take Abaco, which experienced an increase of 4,054 people or nearly 31 percent to a population of 17,224 compared to 2000.  Though such an increase would be nominal for New Providence over 10 years, in Abaco the additional people stress local infrastructure from power generation to road maintenance.

The Bahamas’ greatest challenge is providing and maintaining basic infrastructure across the populated islands.  Even with all the controversy, Abaco needed a new power generating facility and still suffers from countless power failures.  While the population congregates in New Providence, growth and a retraction of growth on some islands must guide government expenditure and planning.

Likewise, the government must accept the diversity of residents living in The Bahamas and amend its immigration policies.  Seventeen percent of the population claims citizenship elsewhere, the majority or 64 percent were from Haiti.  Though the census claims to account for residents regardless of immigration status, it is difficult to imagine that the census was able to account for all residents of known Haitian communities such as those found in Abaco.

The Nassau Guardian has reported on specific data tables such as Internet access and usage, health insurance, and access to toilets at private dwellings.  There are numerous other tables where trends can be extrapolated on for use in education planning, the looming retirement of baby boomers and their future health care needs, marriage trends and reproduction rates.

A copy of the Census 2010 Report became publicly available online on Monday, October 15.  Such data provides innumerable opportunities for government agencies, private researchers and the general public to better understand our Bahamas.

Oct 17, 2012

thenassauguardian editorial

Say no to capital punishment in The Bahamas

NO TO CAPITAL PUNISHMENT


By The Bahama Journal



Human rights do matter; and so does the Universal Declaration of Human Rights.

Clearly, then, the right to life should be considered and described as the world’s number one right thing owed every human person.

This is why – and here closer to home – we pray for the soon-coming realization of our hope which tells us that, we should and must work with all who would in the first instance, obtain a legal moratorium on capital punishment and thereafter, work for the abolition of the death penalty in The Bahamas.

In this regard, take note that this Wednesday past [December 10th. 2008] marked the sixtieth anniversary of one of humanity’s truly great discoveries; to wit, the revelation and recognition that all human beings do have certain inalienable rights.

It is also to be noted that this initiative was spearheaded by former U.S. first lady and U.N. delegate Eleanor Roosevelt, the UDHR guaranteed the political and civic rights of all people, including the right to freedom from torture, slavery, poverty, homelessness and other forms of oppression.

Note also, this Wednesday past marked an important occasion which – regrettably – went unnoticed by practically anyone in media who could have and should have known that, billions of people around the world were – even then- marking the tenth anniversary of the “World Day Against The Death Penalty.

Here we are reminded that this celebration was launched by the “World Coalition Against the Death Penalty” in 2002.

In truth, even though more and more countries are abolishing capital punishment, 57 countries still adhere to the practice. Amnesty International says 20,000 people worldwide are currently on death row.

Sadly, some who now languish in this tormented state are born and bred products of states and peoples in our region.

Sadder yet, there remains a hue and cry from Guyana and Trinidad in the south to the Bahamas in the north for the resumption of this barbaric practice.

But yet [and notwithstanding the blood-curdling cry for blood coming fro the lips of hundreds of Bahamians, we remain confident that – when all things are said and done – this barbarism will be brought to an end.

We are also confident that, those who now run things will – sooner rather than later – join in with that growing majority of mankind who has decided to put an end to this vestige of utter backwardness and depravity.

We remain ever optimistic.

And yet, the truth remains which so ably demonstrates that, Bahamians from practically all walks of life have been transfixed by what they describe as a so-called crime wave.

Most of these people are becoming more and more appalled by the spiraling rate of murder, rape and other instance of carnage and social mayhem.

But as bad as these things now seem, on examination and closer scrutiny they pale in significance to what we would deem the real crime menace in The Bahamas. That real menace being the social rot that provides the breeding ground for those instances when — as they say — things get out of hand.

It is this rot that provides the ground for the efflorescence of those offences that grab public attention, matters like murder, rape and bloody robberies.

We have previously suggested that the crime rate is little more than the fever chart of a sick society.  By extension, we would wish to suggest that the current focus on policing might well be an exercise in futility.

As the street-wise know so very well some of these deals would involve the trade in guns, drugs, other contraband and certain counterfeit goods.

We make this point in the same breath as we note that there is an abundance of evidence that strongly supports the conclusion that The Bahamas is home to tens of thousands of people who routinely flout the laws of the land.

These offences range from the crimes committed by those people who routinely smuggle goods into and out of The Bahamas to those offences that are routinely committed by rogue police officers and other thugs in uniform.

And so, things become ever more foul as the state gets in on those practices which – taken in their entirety – not only lead from deprivation that ends in poverty but which also conduces to producing criminals and any number of cut-throats; thence the cry that these people should be killed.

This is dreadfully wrong.

11 October, 2012

Jones Bahamas

Caribbean Blog International

Constitutional reform, pt. 8: ... ...The right of a citizen to good health and a clean environment

Constitutional reform, pt. 8


By ALFRED SEARS


Sir Lynden Pindling, one of the founding fathers of our Constitution, in an address at the Colloquium on Political Reform, Constitutional Change and National Development at The College of The Bahamas on June 23, 1998, advocated that we expand the fundamental rights protected under the Bill of Rights of the Bahamian Constitution to include: “The right of a citizen to good health and a clean environment.”

Protection of the environment

The Bahamian Constitution, as a living document, should be amended, like the United States Constitution which itself has been amended 27 times, to reflect the shared expectations of and experiences of succeeding generations of Bahamians.

Today, due to the lack of a rational development strategy, we are faced with the rapid loss of aspects of the natural environment and cultural heritage of The Bahamas.  The current national development strategy of development, based on attracting large foreign direct investments in resort tourism, has transformed the physical landscape and way of life of communities throughout the archipelago of The Bahamas.

There needs to be a firm balance between development and preservation of physical and cultural environment.  While the current development strategy has created jobs for Bahamians, it is having an adverse impact on the environment, the quality of life of future generations of Bahamians, who will have to live pollution filled lives, without easy access to the beaches, historical and cultural sites, damped waste in our waters from cruise ships and others in the Bahamian territorial waters, the destruction of marine life and the coral reefs.

The patrimony of future generations of Bahamians will be destroyed, unless we treat the right to good health and a clean environment as fundamental rights protected by the Constitution.

The right of every Bahamian community to preserve its quality of life and be consulted before any public decision is taken to approve the construction and operation of projects that may adversely affect a Bahamian community was affirmed by the Court of Appeal of The Bahamas in the case of Responsible Development of Abaco (RDA) Ltd v. The Right Hon. Hubert A. Ingraham and Others SCCivApp. No. 138 of 2010.

The issue related to a decision of BEC to construct a power plant at Wilson City, Abaco, and the right of the community to be adequately consulted before the decision was taken.  In a judgment by the Justice Allen, president of the Court of Appeal, in which Justices of Appeal Blackman and John both concurred, she observed, at paragraph 15, that, “It cannot be doubted that the exercise of that power was subject to the rights or legitimate expectations of residents of The Bahamas generally, and in this case to the rights and legitimate expectations of residents of Wilson City, in particular, not to have their quality of life adversely affected by the construction and operation of the power plant in their neighborhood.”

At the hearing of the appeal, the power plant had already been constructed, nevertheless the Court of Appeal ordered BEC to conduct a process of full and proper public consultation with the community of Abaco on the operation of the plant going forward.  The court held that “the appellants had a legitimate expectation to be adequately and meaningfully consulted in the decision-making process relative to the location and construction of the power plant at Wilson City, Abaco, which was breached by the respondents.”

United States experience

The United States federal regulation of the environment is based on the National Environmental Policy Act, 1970, under which is established the council on environmental quality, which advises the president.  The Environmental Protection Agency was also created in 1970.  The Common Sense Initiative Council, comprising representatives of government, business and environmentalists take an industry specific approach to solving environmental problems.

One feature of the United States legislations which is instructive is the “private attorneys general” provision which enables an individual to challenge government’s environmental decisions such as the grant of a permit and generally to demand both government and private sector compliance with the law.  For example, the Endangered Species Act contains a provision which states that “any person may commence a civil suit” to enforce the provisions under the act.

In rejecting the secretary of the interior’s position that the petitioner lacked the requisite standing, Justice Scalia, writing for the U.S. Supreme Court in the case Bennet v. Spear 117 S.Ct. 1154 (1997), held: “That the overall subject matter of this legislation is the environment (a matter in which it is common to think all persons have an interest) and that the obvious purpose of the particular provision in question is to encourage enforcement by so-called ‘private attorney general’.”

These private attorney general provisions in environmental laws in the United States have enabled environmentalists to ensure a more equitable balance between development and preservation.  For example, environmentalists have been able to influence the United States federal government to protect the habitats of the northern spotted owl, the Mexican spotted owl and the grey wolf by limiting development on nearly 18 million acres of land.

In The Bahamas, the government is often compromised when regulating foreign direct investment, given the practice among the political parties of relying on secret campaign contributions from foreign investors who are proposing or conducting foreign direct investment, with environmental implications.  Therefore, the regulation of business should not be left exclusively to the initiative, monitoring and enforcement by the government.  I suggest that, like the United States, every Bahamian should be able to act as a “private attorney general” in the preservation and protection of our environmental laws.

Public access to beaches

Access to the beaches for recreation, exercise and leisure is important part of the Bahamian culture and traditional way of life, as island communities.  However, due to the lack of a rational development strategy, public access to the beaches on New Providence has been severely restricted over the past 30 years, due to the public policy of unrestricted touristic and other development, primarily by foreign investors.

Due to this pattern of development, we have seen, notwithstanding recent beach restoration projects, restriction to Governor’s Beach, Delaporte Beach, Cabbage Beach, Yamacraw Beach and Montagu Beach.

One social or economic class, foreign or local, should not be allowed to dominate the use of beaches in The Bahamas.  We must, in our public policy, strike an equitable balance between the accommodation of economic development and the right of all of our people to have reasonable access to the beach resources of our country.  Smart urban planning will protect the natural, historical and cultural patrimony of this country for future generations of Bahamians and visitors.

There is a growing recognition in the Caribbean region generally that the citizens’ right in a healthy and productive natural and social environment should be treated as a fundamental right.  The Constitutional Commission of Jamaica in its final report, dated February 1994, recommended that the Jamaican Constitution should be amended to include, amongst other things, “the right to enjoy a healthy and productive environment free from the threat of injury or damage from environmental abuse and degradation of the ecological heritage”.

Similarly, the report of the Constitutional Review Commission of Barbados, dated December 1998, recommended that the Barbadian Constitution be amended to include, amongst other things, the duty and responsibility of every person in Barbados “to value and preserve the rich heritage of Barbadian culture” and to “create and maintain a clean and healthy environment and have compassion for living creatures”.

Further, the Barbadian Commission recommended that the Constitution be amended so that the state shall have the responsibility to “ensure that the beaches and public areas are accessible to all and do not become the exclusive preserve of any one sector of the community” and to “give the highest priority in the planning and execution of government policy to the preservation and protection of the natural environment of Barbados, which it shall hold as a sacred trust for future generations”.   The current laissez faire policy of The Bahamas with respect to the Bahamian environment is out of step with the growing regional consensus that we must, through the Constitution, statutes and common law, pronounce a rational policy for the preservation and protection of our natural environment and cultural and historical heritage.

Recommendations

Since our Constitution is the most authoritative statement of the Bahamian community’s aspirations, expectations and policies, I recommend that our Constitution be amended to include the following provisions:

1. Every person shall have the right to enjoy a healthy and productive environment free from the threat of injury or damage from environmental abuse and degradation of the ecological, cultural and historical heritage.

2. Every community should be adequately and meaningfully consulted in the decision-making process before the approval of any project that may adversely affect the quality of life and welfare of any Bahamian community.

3. The state shall ensure that the beaches and public areas are accessible to all and do not become the exclusive preserve of any one sector of the community.

4. The state shall give the highest priority in the planning and execution of government policy to the preservation and protection of the natural environment and cultural heritage of The Bahamas, which it shall hold as a sacred trust for future generations of Bahamians.

Finally, all future environmental legislations presented to the House of Assembly should contain a “private attorney general” provision which will enable any Bahamian citizen to challenge an environmental decision by a public authority to protect the good health of Bahamians and visitors and the ensure a clean environment.

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

Oct 11, 2012


thenassauguardian

Constitutional reform pt. 9: ... ...The current development strategy in The Bahamas, industrialization and modernization ...by inviting foreign direct investment by large multinational resorts and financial institutions, some of which employ thousands of Bahamian workers ...require a redefinition of trade unions in accordance with International Labor Organization (ILO) Conventions 87 and 98 ...in order to achieve a better balance of power between capital and labor in The Bahamas

Constitutional reform Pt. 7: ... ...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

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. 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. 4: ... ...I now offer some recommendations for consideration in the reform of Chapter 2 of the Bahamian Constitution

Constitutional reform, pt.3: ... ...The need for constitutional reform is most dramatically illustrated in the constitutional provisions dealing with citizenship

Constitutional reform, pt. 2: ... ...The preamble of the Bahamian constitution, I submit, has a number of weaknesses... ...First, there is no reference to the historical fact of 300 years of slavery of African people in The Bahamas ...or the genocide of the Lucayan/Arawak people by the European presence ...two critical aspects of the historical evolution of the Bahamian polity and society... ...Second, the preamble mischaracterizes the incorporation and colonization of The Bahamas into the triangular slave trade, initiated by and for the benefit of Europe, as: “...rediscovery of this family of islands, rocks and cays heralded the rebirth of the New World.”

Constitutional reform Pt. 1: ... ...After 39 years of constitutional practice in The Bahamas, it is now time that we examine our constitution ...to determine if it conforms to the demands and expectations of contemporary Bahamian society... ...Does the Bahamian constitution reflect the contemporary shared expectations and experiences of the Bahamian community today?

The government may not include the question of a national lottery on the upcoming gambling referendum ...after consultants had expressed concerns over the feasibility of such a scheme ...says Prime Minister Perry Christie

Lottery question may not make it to referendum

TANEKA THOMPSON
Guardian Senior Reporter
taneka@nasguard.com

The Christie administration may not include the question of a national lottery on the upcoming gambling referendum after British consultants expressed concerns over the feasibility of such a scheme, Prime Minister Perry Christie revealed yesterday.

Christie spoke to The Nassau Guardian minutes after he and Tourism Minister Obie Wilchcombe, who has responsibility for gaming, ended a conference call with the consultants in London.

He said the advisors expressed worries that a national lottery catering to a small country like The Bahamas might not be as attractive as larger games of chance with higher cash prizes in the nearby United States.

“The consultants have a number of concerns about the feasibility of a lottery in the sense of whether or not there is a sufficient market here to sustain a lottery as opposed to web shop operations,” Christie said, after Cabinet broke for lunch. “Again, we indicated that what we have to do is determine whether the lottery would be a lottery of 300,000 Bahamians or five million visitors that come to The Bahamas or if it’s on the Internet whether there is anything to prevent people in Florida from being a part of the lottery that takes away from Bahamian winnings.

“One of the considerations obviously is that we give very careful consideration to whether or not we want to proceed with the lottery as opposed to the web shops.”

When asked if the question of a national lottery might no longer be included in the gambling referendum, Christie said he was unsure and is awaiting more guidance from the consultants.

“It could be, I’ve indicated the question,” he said. “I don’t know, I’ve asked for a specific advice. It came up in our discussions and you rightly asked the question, the response is they had some concerns about it and they expressed those concerns. The concerns had to do with whether or not it could be a sustainable activity in The Bahamas. So we’ll look at it very carefully moving ahead.

“I said I would bring complete focus to it after the by-election.”

The prime minister said the consultants also spoke of the “urgent” need to regulate web shops due to the large sums of money passing through the establishments unchecked.

“. . .In looking at the web shop operations they have given us some reasons to consider why there is some urgency in being able to regulate them. That for really good order in the country and for consistency in terms of how you regulate people who have access to large sums of money that there is an urgency behind this whole thing that we weren’t quite aware of but now we’re bringing focus to it.”

Christie has previously said that the planned referendum on gambling will ask voters to legalize web shops and/or establish a national lottery. A date for the vote has not been set, however, the prime minister has said that he hopes the referendum would be held by the end of the year.

Christie added that the consultants indicated that government needed to tweak draft gambling legislation left in place by the Ingraham administration.

“So we have been reviewing now who we should really retain to assist us with the drafting of what can be a set of complex regulations to monitor and account for these operations,” he said.

Last week, Christie said he received the consultants’ initial report. He has now requested that the advisors present a more detailed report so that the public can have as much information on the issue ahead of the referendum.

Oct 10, 2012

thenassauguardian

Caribbean Blog International

Chief Justice Sir Michael Barnett... ...the Constitution Commission ... and the comprehensive review of the constitution of The Bahamas...

Constitution Questions

By SANCHESKA BROWN

Tribune Staff Reporter

sbrown@tribunemedia.net

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.

 

Prime Minister Perry Christie appointed the 13-member committee in August to conduct a comprehensive review of the constitution of the Bahamas and recommend changes to it in advance of the country’s independence anniversary next year.

 

One of those changes, according to Sir Michael, would be to review the requirements of the justices in the Court of Appeal - which he said were causing a lot of good judges to be overlooked.

 

“One of the matters I thought was a bit surprising was a requirement for the Court of Appeal that a judge of the court must have to have prior judicial experience before he could be appointed to the Court Of Appeal,” he said.

 

“I have not found that provision in any other jurisdictions and I am a bit surprised that they would put such a restriction on the appointed justices because it excluded a lot of persons who would otherwise be eligible and who would otherwise serve as suitable judges of the Court of Appeal. While the requirement of prior judicial experience is laudable I am surprised they would require it as a pre requisite.”

 

Sir Michael, who served as Deputy Chairman of the last Constitutional Committee, reminded the members that full public support was needed for any provisions or they would be overlooked - like the last two referendums.

 

He said: “There were two previous attempts at amending the constitution since 1973; one in early 1981 and the other in 2002. Both were unsuccessful. Many of the provisions can not be amended without public approval, you must bear in mind that any proposal for change must be able to receive widespread public support.”

 

Sir Michael said he did not believe the upcoming referendums would fail - because it is a different time.

 

“The circumstances in 2002 and 1981 are radically different from the circumstances in 2012 and 2013. I have also never been persuaded by the argument that the referendums failed because the public did not have sufficient information to make an intelligent decision but that is something for the historians to look at,” he said.

 

This was the commission’s second meeting.

 

According to the Prime Minister, the commission will concentrate on examining anti-discrimination and fundamental rights provisions in the Bahamas constitution, but also citizenship-related questions.

 

He said: “It is anticipated that the new commission will pay particular attention to the need to strengthen the fundamental rights and freedoms of the individual, including the need to end gender-based discrimination against women consistent with the United Nations conventions and more enlightened views that have developed globally since the attainment of our independence.”

 

Mr Christie also said the commission was expected to examine complex questions relating to the regulation of the relationship between state power and the individual, the retention and enforcement of capital punishment, whether the Bahamas should remain a constitutional monarchy or evolve into a republic and whether if the Caribbean Court of Justice or perhaps final court in the Bahamas should replace the Judicial Committee of the Privy Council as the final court of appeal under our constitution.

 

Additionally, questions relating to the Bahamas’ political system will arise for constitutional review, said Mr Christie. Among these include whether there should be constitutionally fixed dates for the general elections, whether there ought to be fixed term limits for prime ministers and members of Parliament, whether the electorate should be vested with limited rights to recall their MPs and what powers should be vested in the Attorney General or if a constitutionally independent Director of Public Prosecutions should be established.
Members of the commission will include former Attorney General Sean McWeeney, who will be chairman; Loren Klein, Carl Bethel, Justice Rubie Nottage (retired), Mark Wilson, Lester Mortimer, Tara Cooper-Burnside, Michael Stevenson, Dr Olivia Saunders, Michael Albury, Chandra Sands, Brandace Duncanson and Carla Brown-Roker.
The commission is expected to report its recommendations to the government by the end of March 2013.

 

October 05, 2012

 

Tribune 242

 

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