Voices Of Women Must Be Heard
By NOELLE NICOLLS
A political blog about Bahamian politics in The Bahamas, Bahamian Politicans - and the entire Bahamas political lot. Bahamian Blogger Dennis Dames keeps you updated on the political news and views throughout the islands of The Bahamas without fear or favor. Bahamian Politicians and the Bahamian Political Arena: Updates one Post at a time on Bahamas Politics and Bahamas Politicans; and their local, regional and international policies and perspectives.
Constitutional reform pt. 14
The constitution: Limitations in enforcement of Bill of Rights
By Alfred Sears
The fundamental rights guaranteed to us under the constitution contain a number of limitations which impede the effective enforcement of the Bill of Rights under Commonwealth Caribbean constitutions and demonstrate the need for a new Caribbean jurisprudence.
The first limitation is the existence of broad derogation clauses in these constitutions. While most of the derogation clauses are fairly standard, however, in The Bahamas Constitution the derogation clauses to the protection from arbitrary search and entry are in the broadest terms excusing any action reasonably required, “in the interest of defense, public safety, public order, public morality, public health, town or country planning, the development or utilization of any other property in such manner as to promote the public benefit.”
As Professor Lloyd Barnett in the essay “The Present Position Regarding the Enforcement of Human Rights in the Commonwealth” (October 1980) 2 W.I.L.J. 97 cautions, these derogation clauses are “... all imprecise in nature, and leave the door open to unnecessary legislative encroachments.”
The second limitation in the enforcement of personal liberties under these constitutions involves the existence of saving clauses, which preserve existing written and unwritten law from invalidation because of inconsistency with provisions of the Bill of Rights provisions.
The former Chief Justice of The Bahamas Telford Georges, in an essay “The Scope and Limitations of the State Machinery”, Int’l Comm’n of Jurists and Organization of Commonwealth Caribbean Bar Association, Human Rights and Development (1978), speaking of a similar clause in the constitution of the Republic of Trinidad and Tobago, argues that such a clause “... considerably limits the scope of the machinery of judicial review as a method of enforcement of the rights apparently enshrined in the constitution. The judicial view... is that the constitutions create no new rights. They merely preserve existing rights.”
The case of Re Thornhill illustrates how rights stated in a Bill of Rights provision in the constitution of Trinidad and Tobago was weakened by a pre-existing common law rule. Thornhill, who had been arrested on multiple charges, alleged that the police had denied him the right to communicate with the lawyer of his choice. The pre-republican constitution of Trinidad and Tobago, Section 2 (2) (ii), stated that no act of Parliament should deprive a person who has been arrested or detained of the right to retain and instruct without delay a legal adviser of his or her choice and to hold communication with him. Therefore, the defendant asked the Supreme Court of Trinidad and Tobago to declare, inter alia, that the police had contravened his constitutional right to legal counsel immediately after arrest.
The attorney general argued that there was no right to counsel at common law therefore it did not exist under the constitution, since existing law had been preserved and could not be invalidated even if inconsistent with the constitution.
Justice Telford Georges, then the chief justice of Trinidad and Tobago and the trial judge, rejected this view and stated: “I hold that the right now exists because the constitution has proclaimed that it has always existed here and that it should continue to exist.”
The learned judge reasoned that the phrase “without delay” must not mean at the convenience of the investigators or at the stage where definable rights could be won or lost, but rather it “... is a right which arises immediately after arrest and that the right to exercise the right should be afforded without delay.”
The High Court of Trinidad and Tobago rejected this argument and concluded that the Bill of Rights was not intended to enlarge that body of rights which existed prior to the constitution. However, the principal judgment of the High Court was based on another ground. The court held that the police are not law servants of the state and as such they act independently; therefore, their actions could not be the basis for recovery for infringement, abrogation or abridgment of a fundamental right.
This decision by the High Court of Trinidad and Tobago elicited widespread criticism from legal commentators in the Caribbean. Dr. Francis Alexis, for example in the essay “After Thornhill: Does Anything Remain of the Bill of Rights?”, West Indian Law Journal, October 1977, argued that this decision by the High Court was “ ... a neat illustration of the dangerous cul-de-sac towards which the courts can be impelled by holding fast to the singularly unfortunate doctrine that the Bill of Rights did not create any right where before there was none.”
Regarding the issue of whether the police are public servants or independent agents, Alexis pointed out that, unlike in England where the responsibility for financing the different police services is divided between the central government and local police authorities, in the Caribbean the financing, maintenance and control of the police services is exclusively by central government, notwithstanding public and police service commissions. Alexis concluded that: “Perhaps the ordinary individual’s most frequent contact with the state administration is that with the police ... If, therefore, the police are excluded from the ambit of the Bill of Rights one may suggest .... that the Court of Appeal in Thornhill said an obituary on the Bill of Rights.”
However, this dire prediction was not realized, as the Privy Council reversed the Trinidadian Court of Appeal and held that an arrested or detained person has a right to consult counsel without delay after arrest or detention even while being in police custody, thereby affirming the judgment of Georges at the first instance.
The net effect of the saving clauses in Caribbean constitutions has been to weaken and create ambiguity about fundamental rights stated with apparent clarity in the constitutions; thus, undermining the clear intent of the framers of the constitutions of these newly independent countries of the Commonwealth Caribbean.
A further limitation
The third limitation in the enforcement of the Bills of Rights concerns the common law rules of construction often applied by the courts in constitutional interpretation which is based on notions derived from the British doctrine of parliamentary supremacy. Sir Leonard Knowles, former chief justice of The Bahamas, in regard to the rules of construction applied to constitutional interpretation in the Commonwealth Caribbean, quoted Lord Diplock, who in Hinds v. The Queen (1976) 2 W.I.R. 372 stated that: “To seek to apply to constitutional instruments the canons of construction applicable to ordinary legislation in the fields of substantive criminal or civil law would, in their lordships’ view, be misleading ... there can be discerned in all those constitutions which have their origin in an act of the Imperial Parliament at Westminster or an order in council, a common pattern of style of draftsmanship which may conveniently be described as the Westminster model.”
The Privy Council in Minister of Home Affairs v. Fisher (1979) 3 All E. reiterated this principle R. 21. At issue here was a provision of the Bermuda constitution which permitted legislative derogation from the right of freedom of movement of persons who did not “belong to Bermuda”.’
The Privy Council held that in construing the constitutional definition of “persons who belong to Bermuda”, the common law presumption that the word “child” excludes illegitimate children should not be followed.
Lord Wilberforce cautioned that a constitution should not be interpreted like an act of Parliament, but that it requires “principles of interpretation of its own suitable to its character as already described, without necessary acceptance of all of the presumptions that are relevant to legislation of private law”.
In spite of the Privy Council’s apparently clear position that a constitution should not be interpreted like ordinary legislation, Lloyd Barnett, using the Nasralla case as an example, observes that in the Caribbean “frequently in constitutional cases judges state the principle of construction in a form which is indistinguishable from that utilized in the interpretation of ordinary statutes... the approach to constitutional interpretation has been largely dominated by English techniques of statutory interpretation”.
The American context
It is instructive to contrast this practice of constitutional interpretation in the Caribbean with constitutional practice in the United States. In U.S. constitutional jurisprudence the U.S. Supreme Court is the ultimate guardian of the freedoms and rights of the individual, facilitated through the power of judicial review established by the case Marbury v. Madison (1803) 5 U.S. 137.
Professor Henry M. Hart in the essay “The Power of Congress to Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic” 66 Harv. L. Rev. (1953) 1362, argues that protection of the U.S. Bill of Rights is an essential function of the court the jurisdiction of which cannot be destroyed by Congress.
Using the political process rationale developed by Justice Stone, he contends that the Supreme Court is the guardian of the freedoms of the individual and the protection of minorities against the state and majoritarianism. However, Professor Derrick A. Bell, Jr. in Race, Racism and American Law (2nd ed. 1980) contends that the U.S. Supreme Court has not been consistent in maintaining this “essential function” with respect to the fundamental rights of African-American citizens, as illustrated by the cases Plessy v. Ferguson (1896) 163 U.S. 537, Dred Scott v. Sandford (1857) 60 U.S. 393 and the Slaughter-House (1873) 83 U.S. 36 cases.
Bell posits that the court’s role has been paradoxical in this area, swinging from extreme conservatism during the Post Civil War Reconstruction era to healthy activism during the civil rights era, the latter illustrated by decisions such as Brown v. Board of Education (1954) 347 U.S. 483, Loving v. Virginia (1967) 388 U.S. 1, and Katzenbach v. Morgan (1966) 384 U.S. 641. Bell concludes that the degree of progress that African-Americans have made away from slavery and towards equality has depended on whether allowing blacks more or less opportunity best served the interests and aims of white society.
However, the U.S. Supreme Court, in an equality revolution begun by the Warren Court, established a dual standard of constitutional review, rational standard and the strict scrutiny standard and has readily found that all disadvantaging classifications resting on race and ethnicity are suspect and violate the equal protection clause of the Fourteenth Amendment, treating discrimination based on national origin the same as discrimination against African-Americans in such cases as Yick Woo v. Hopkins, Hernandez v. Texas and Trimble v. Gordon.
Justice Black, in Korematsu v. United States (1944) 323 U.S. 214, stated that the court in such situations will use a strict scrutiny standard of judicial review and not the rational basis standard normally applied to legislation: “All legal restrictions which curtail the civil rights of a single racial group are immediately suspect. It is to say that courts must subject them to the most rigid scrutiny. Pressing public necessity may sometimes justify the existence of such restrictions, racial antagonism never will.
Thus, the court has outlawed invidious group differentiation which is irrelevant to a person’s capabilities and contributions. The court, in the case Plyler v. Doe (1982) 457 U.S. 202 also invalidated a Texas statute permitting local school boards to deny free education to school-aged children of illegal aliens as violating the equal protection clause of the Fourteenth Amendment.
The U.S. Supreme Court has also used the Due Process Clause of the Fourteenth Amendment to extend individual liberties. In Griswold Justice Douglas, using a penumbra theory, held that the right of privacy, though not specifically stated in the Bill of Rights, is nevertheless protected against unnecessarily broad state regulation. He posited that some of the explicit provisions of the Bill of Rights created a zone of privacy. He concluded that the right of married persons to use contraceptives fell within this penumbra.
In Roe v. Wade (1973) 410 U.S. 133, Justice Blackman held that this right of privacy includes a pregnant woman’s control over her own body and that her right to abortion was as an aspect of the right of privacy. Professor Lung-Chu Chen in the essay “Institutions Specialized to the Protection of Human Rights in the United States” 1 N.Y.L. Sch., Human Rights Annual 27 (1983), argues that the flexible, contextual approach of the U.S. Supreme Court in constitutional interpretation has resulted in more human rights protection for more people in more areas, extending to all important value sectors. Caribbean Judges should be encouraged to demonstrate similar flexibility in developing our constitutional jurisprudence in the Commonwealth Caribbean.
• Alfred Sears is an attorney, a former member of Parliament and a former attorney general of The Bahamas.
November 22, 2012
Flip-flopping Christie flips and flops – again!
Front Porch
By Simon
In the embarrassing climb-down that is his most recent flip-flop on gambling, the prime minister desperately sought to make a virtue out of his incompetence and bungling, and that his government likely lacked the legal authority to proceed with a vote that it probably would have lost: “I am a prime minister who listens. And in listening to the still evolving public discourse on the forthcoming referendum it has become clear to me that more time is needed before the Bahamian people are called upon to vote.
“I am supported in this view by the leadership of a broad cross-section of the national community with whom I have been consulting over the past few days.”
That Perry Christie believes that voters are gullible enough to believe such balderdash speaks to his contempt for the common sense of those who see through the farce he is attempting to perpetuate in this whole numbers business. His attempt to describe his latest flip-flop as listening must be an inside joke.
There are reports of private polling to gauge whether the December 3 poll should have been postponed. One wonders whether this figured into its postponement.
Christie may have been listening, but was it mostly to narrow interests who may funnel campaign contributions to his party, as well as those who gave him stunningly poor advice?
Confusing
If he had indeed listened carefully to a broader cross-section of voices earlier rather than to the drumbeat of his puffed-up hubris and self-serving backers he would not be in this utterly confusing mess of which he is the lead author, though his Cabinet bears collective responsibility for the debacle.
Despite Christie’s involvement in public life for nearly four decades this has been one of the most disastrous performances – at the nexus of policy and politics – by any prime minister in an independent Bahamas.
Christie’s newfound listening posture is not the sign of able leadership that he pretends. Instead, by failing to adequately consult beforehand, he failed some of the most basic tests of leadership.
His so-called listening reminds one of a toddler who, after burning his finger on the stove for the umpteenth time, stops for the moment, then brags to his mom about how well he’s listening to her advice to stay away from the stove.
There is a back story to this debacle to which Christie alluded in Parliament. Rattled by Long Island MP Loretta Butler Turner in the House, Christie recited the PLP’s three election wins from the Elizabeth by-election, nearly three years ago, to that of North Abaco, as if to say, how dear you challenge me.
That his party failed to win a majority of the popular vote on May 7 – in part because of his leadership deficits and previous failures as prime minister – has not engendered in him any humility. Christie’s arrogance is surreal.
It’s the same cloud nine he has been on since May 7, indicative of his narcissistic claim of divine provenance for his prime ministership: “... But God has spoken. God has made me the prime minister of the Commonwealth of The Bahamas.”
Often, narcissism’s fraternal twin is megalomania, a “condition characterized by delusional fantasies of ... omnipotence”, and “by an inflated sense of self-esteem and overestimation by persons of their powers.”
Debacle
Christie’s web cafe debacle was conceived in hubris and megalomania, nurtured in sheer incompetence and foisted on the Bahamian people with stunning miscalculation. His cloud nine has turned to stormy weather.
Fresh off election wins, Christie miscalculated that he would rush through a vote that his party would win giving it political cover to legalize certain enterprises that might prove generous to his party in perpetuity. Talk of neutrality was always a ruse. His gambit, thus far, has backfired.
Still, Christie’s hubris was only outmatched by staggering incompetence. To refresh our memories, let’s recall this government’s comedy of errors:
The PLP’s election charter promised a referendum on a national lottery and gambling. The government flip-flopped by deciding to hold a referendum solely on web cafes, supposedly on the advice of UK consultants who apparently suggested that a national lottery was not commercially feasible, even though they have admitted to not conducting a more thorough study.
Remember also that Christie said the consultants were preparing a report, which now turns out to be just a few letters. The breakneck flip-flopping continued: Christie then advised there would be a poll instead of a referendum.
Now, in the latest whip-lashing flip-flop, we are told that the referendum is back on and will include a question on a national lottery, the very lottery that was supposedly commercially non-feasible based on a report which seemingly never existed. What a tangled web cafe weave.
So staggeringly incompetent has Christie been in this numbers affair, one wonders whether certain colleagues left him to his own devices, so that he might flail, flounder and flip-flop. The prime minister’s attempt to extricate himself from this entanglement in his most recent House communication on gambling also failed.
Butler-Turner was having none of Christie’s flip-flopping, crying shame on the whole sham, taking Christie’s nerve while taking on a government which seemed dazed as she mocked its breath-taking hypocrisy and muddled thinking.
In a weak defense, Christie boasted of his numbers in the chamber, as if he was rallying his troops in the face of the Long Island MP’s singular offensive. Curiously, despite the largest Cabinet since internal self-government in 1964, his government’s performance on the gambling issue has been a collective disaster.
Nevertheless, Christie’s leading and vociferous role in this policy and political mess has likely encouraged those within his Cabinet who would rather replace him sooner rather than later.
Bluster
Speaking of crocodile tears, as Christie did last week, an often telling sign that he is under the gun and/or on the losing side of an argument is that he becomes even more voluble and impassioned as he attempts to obfuscate certain facts with performance art, bluster, and often feigned hurt or sincerity, depending on the dramatic persona required.
He did so in the House, referring to those who are too stupid and blind to see certain facts, and those who are being “transparently opportunistic”. Given Christie’s tin-ear, blinders, wholesale incompetence, collapsed credibility, dissembling and spectacularly opportunistic flip-flopping on this issue, his was not the best choice of language.
While Christie’s performance in the House last week may not be good enough for an Academy Award, it merits a nomination for a Daytime Emmy. Unfortunately, his performance then and during the course of the current debate will not win him an award for excellence in public policy or good governance.
The very day that Christie was performing his latest flip-flop in the House, Fr. Jimmy Palacious lambasted the government’s web cafe intentions. He lamented that this government would seek to push through a poll on gambling while women are constitutionally still unequal to men.
This is the crying shame of Perry Christie’s PLP, demonstrably quicker in seeking to secure the greed of private interests rather than the public good of the mass of Bahamians, and the equality of women.
Christie’s failure of leadership is not solely one of chronic incompetence. More broadly and egregiously it is an outsized and shameful failure to keep faith with the Bahamian people and the demands of social justice. No posturing, play-acting or preening by Perry Christie can obscure this sad reality.
November 20, 2012
Constitutional Reform pt. 13
The Constitution: Gaming and discrimination
BY ALFRED SEARS
Since the early 1960s full-time casino gambling has been and remains the anchor attraction of the major touristic resorts in The Bahamas, without any major opposition from the Bahamian society either on moral or social grounds. However, under the Lotteries and Gaming Act, 1969, Bahamian citizens, permanent residents, persons ordinarily resident in The Bahamas or persons in the employment of the government of The Bahamas, except with a special permit, are prohibited from taking part in any gaming and casinos in The Bahamas. While there is a complete ban on Bahamians, visitors are invited to The Bahamas to patronize casinos.
Casino operators in The Bahamas, all of whom are foreign investors, receive each year a promotional cash contribution from the government, pursuant to their respective heads of agreements, to promote their resorts in which casino gaming is a core attraction. As part of the public policy of The Bahamas, the government grants licenses to casinos, receives taxes of approximately $15 million annually from casinos and allows Bahamians to participate, through employment, in gaming activities in casinos, as croupiers, pit bosses and supervisors on behalf of the casinos.
On the other hand, to participate in gaming in The Bahamas, Bahamians must patronize illegal web shop operations, owned and operated by Bahamian entrepreneurs who risk, along with their patrons, arrest and prosecution. However, in spite of this risk, the local web shops have proliferated throughout The Bahamas with thousands of Bahamian patrons.
The root of this discriminatory treatment of Bahamians and permanent residents is found in Article 26 (1) of the Constitution which declares that no law shall make any provision which is discriminatory either in itself or in its effect. However, under the derogation clause of Article 26 (4) (e) it is stated that this article shall not apply to any law so far as that law makes provision “for authorizing the granting of licenses or certificates permitting the conduct of a lottery, the keeping of a gaming house or the carrying on of gambling in any of its forms subject to conditions which impose upon persons who are citizens of The Bahamas disabilities or restrictions to which other persons are not made subject”.
Therefore, the Constitution allows for disabilities or restrictions, in the area of gaming, against Bahamian citizens and permanent residents which disabilities and restrictions are not applicable to visitors and foreign investors. The question is whether this blanket prohibition of Bahamians from gaming can be justified, on the grounds of public policy and constitutional principle, given the current support of and subsidy by the government of foreign-operated casino gaming in The Bahamas.
Prime Minister Perry Christie announced in the House of Assembly on October 31, 2012 that there will be a referendum on December 3, 2012 on one question: Do you support the legalization of web shops? The prime minister disclosed that the question of a national lottery will not be included which, in the opinion of the London-based consultants, were not commercially viable and that the question of removing the prohibition on casino gambling for Bahamians will not be a part of the referendum. The prime minister pledged to shut down web shops and enforce the gaming laws if there were to be a majority “no” vote. If a majority of the votes in the referendum were to be in the affirmative, then the Gaming Board will issue licenses to those persons who meet a strict set of criteria, including possessing the necessary experience, integrity and expertise, as well as possessing the necessary financial resources and having organizational capacity and internal controls needed to operate in an efficient, responsible and transparent manner. According to the prime minister, legalized web shops will pay a licensing fee of at least $1 million and a performance bond, annual taxes based on their revenue, contribute to the cost of implementing the new laws and regulations, create and maintain programs to protect gamblers from addiction and assist with the cost of setting up a system to rehabilitate gambling addicts.
According to The Nassau Guardian, as reported by Taneka Thompson on November 6, 2012 of an interview with Christie on the sidelines of a swearing in ceremony for North Abaco MP Renardo Curry as a parliamentary secretary, the prime minister conceded that while a referendum is not needed to regulate the gaming sector, his government will be conducting a referendum to glean public opinion on the issue, in the following quote: “...Because there is nothing to do with amending the Constitution; this is not a constitutional referendum... I’m advised legally that all of the prerequisites that go into organizing a constitutional referendum do not apply, and so when I get the legal opinion I will publish it so people will see that all this is, is a government seeking an indication of the opinion of people.”
According to Article 52 (1) of the Constitution, Parliament may make laws for the peace, order and good government of The Bahamas. Article 52 (2) provides that the power of Parliament to make laws shall be exercised by bills passed by both houses, whether without amendment or with such amendments only as are agreed to by both houses, and assented to by the governor general in accordance with Article 63 of the Constitution. The Privy Council in Cobb & Co. Limited and Other v. Norman Eggert Kropp (1966) 3 WLR 416 stated that, “The phrase ‘peace welfare and good government’ is one that is ‘habitually employed to denote the plenitude of sovereign legislative power, even though that power be confined to certain subjects or within certain reservations.’” Therefore, the government, given its parliamentary majority can amend the Lotteries and Gaming Act to remove the prohibition against Bahamian participation in casino and other forms of gaming in The Bahamas. However, given the apparently divided public opinion on this issue, the government has decided to poll the Bahamian electorate by way of referendum.
Section 2 of the Constitutional Referendum Act (1977) provides that, “For the purpose of obtaining the approval of the electors qualified to vote in an election of members of the House of Assembly with respect to a bill submitted to them, which bill seeks to alter an article of the Constitution specified in Article 54 (2) or (3) of the Constitution or any of the provisions of The Bahamas Independence Act, 1973, a vote shall be taken by way of a referendum held in accordance with this act.” It is clear that a referendum, pursuant to the Constitutional Referendum Act, is part of a legislative process reserved to amending the articles specified in Article 54 (2) or (3) of the Constitution or the provisions of The Bahamas Independence Order. Therefore, the proposed referendum on gambling would not fit within the legislative scheme of the Constitutional Referendum Act.
If the proposed referendum on gambling is intended to be a mere consultative or advisory referendum on the issue of whether the web shops and lotteries in The Bahamas should be legalized or not, in my opinion, there would have to be an amendment of the Constitutional Referendum Act or the passing of a new law to enable the conduct of an advisory or consultative referendum, as an advisory or consultative referendum is outside the parameters of the present Constitutional Referendum Act. The Privy Council, in the case The Prime Minister of Belize v. The Attorney General of Belize (2010) UKPC 7, held that an amendment to the Referendum Act, which is not part of the legislative process and which does not purport to alter the deeply entrenched provisions of the Constitution, but is merely advisory or consultative, imposes no obligation on the legislature and therefore could not violate the Constitution.
On the evening of November 13, 2012 Christie, in a mature acknowledgement to the public questions and concerns raised about the process, announced that the proposed referendum had been postponed from December 3, 2012 to January 28, 2013. The prime minister also disclosed that the postponed referendum will ask whether lotteries should be legalized, in addition to web shops. On November 14, 2012 the government tabled a bill in the House of Assembly to amend the Constitutional Referendum Act and the Parliamentary Elections Act and provide a legal framework for the conduct of advisory or consultative referenda.
The adjusted proposal of the government, intended to achieve the limited objective of determining whether the Bahamian electorate supports the legalization of web shops and lotteries by way of an advisory or consultative referendum under the supervision of the parliamentary commissioner, will avoid controversy over the process of the referendum.
On a more substantive level, however, I urge that the Constitutional Review Commission recommend the removal of derogation clause 4 (e) from Article 26 of the Constitution, in order to affirm the constitutional norm of non-discrimination, regularize and tax the Bahamian community gaming industry and open casino gaming to Bahamian ownership, management and patronage.
• Alfred Sears is an attorney, a former member of Parliament and a former attorney general of The Bahamas.
Nov 15, 2012