Is The Gambling Referendum Worth The Time?
By NOELLE NICOLLS
Tribune Features Editor
nnicolls@tribunemedia.net
THE upcoming referendum is really yucking up my vexation. I join the chorus of Bahamians encouraging the government to put a proper referendum forward; one that is worth suffering the inconvenience of going out to vote. There is no shame in doing the right thing.
My
concerns, however, do not echo some of the popular discourse. I for one
believe some of the complaints represent plain ole “bad mind”:
grudgfulness and hypocrisy. And I have no intention of perpetuating
that.
If
the government is going to put a question to the Bahamian people by way
of a referendum, it has a responsibility to educate the Bahamian people
about the question and the premises upon which it is based. It is
completely inadequate for the government to say it is staying out of the
fray. Gambling in the Bahamas is a complex issue and an uninformed
public serves no one.
My
first point explores the issue of web shops. There is a major point
that seems to be eluding the government and many observers; Web shops in
the Bahamas are licensed businesses. They are not illegal operations,
even though they function within grey confines of the law.
Bahamians
tend to make generalised statements about gambling being illegal.
However, there is a big difference between something that is illegal
(meaning, something that contravenes the regulations set out in a
particular statue) and something that is simply unregulated. In reality,
much of what web shops now do is not illegal: They are simply not
regulated.
Those
distinctions may seem meaningless as Bahamians discuss the matter over
the airwaves. However, they are very real in the face of the law. The
legal experts employed by web shops are well aware of this, and they use
it to their advantage. Let us not forget, the attorney for one of the
web shops was a former member of parliament.
These
businesses are not fly by night operations. They are run by astute
businessmen with sharp attorneys. To date I am not aware of any
successful legal challenge which resulted in a web shop license being
revoked or a web shop being closed. To the contrary, web shops continue to grow and expand.
I
am no legal expert, but it is obvious that loopholes in the law have
enabled web shops. The real crime is not the business acumen and legal
prowess of gambling bosses, it is the shortsightedness and perhaps
ineptness of subsequent governments in failing to get ahead of the
industry, which is surprising considering the House of Assembly is
riddled with lawyers.
On
this point there has been zero accountability, and it has left the
Bahamian public confused and uninformed about the issues. The Free
National Movement (FNM) is grasping at straws to criticize the
Progressive Liberal Party (PLP) led government, but neither party has
clean hands.
Government
regulations have simply not kept pace with the evolution of the numbers
business. The failures have created grey areas in the law that makes it
near impossible to regulate the industry or prosecute its players. This
is particularly true as it relates to the wire transmission of wagering
information (online gambling).
Bahamians
are still applying an old school way of thinking about numbers to an
industry that has made quantum shifts. Long gone are the dice and paper
days when underground gaming houses actually pulled numbers. The
business model has changed.
Technology
– specifically the advent of online gaming – has given gambling bosses
the ultimate opportunity to step out of the shadows onto the frontlines
having no regard for the Lotteries and Gaming Act.
Web
shops are some of the most technologically advanced businesses in the
Bahamas. They have invested millions in technology. They purchase world
class software from the same providers who supply banks and other
companies in the financial services industry. They use sophisticated
systems that are elusive. The laws or law makers simply did not
anticipate this sort of development.
A consumer can setup a charge account with a web shop and from the comfort
of their own home gamble online. Without unjustifiable invasions of
privacy on the part of the government, such a practice is impossible to
prohibit.
A
web shop can set up a computer lab and provide Internet access to its
consumers and free itself of responsibility as to what its customers do
online: write a business proposal, read soap opera news or gamble
online.
Online
gaming has become so popular with women that they now comprise the
largest share of web shop customers, according to inside sources.
It has created a completely new and extremely profitable revenue stream for web shops.
The
laws that govern the gaming industry are highly technical. When online
gaming exploded, it made international regulators dizzy. Online gambling
houses were able to exploit a host of loopholes and grey laws.
There
is still a raging global debate about how and if to regulate or
prohibit online gambling. Bahamian regulators are far behind on the
learning curve.
Last
week, Gaming Board Chairman Andre Rollins questioned the legality of
bets being waged using lotteries from in the United States. He said the
government would have to look into the practice if the referendum were
to pass. This investigation should not take much time.
According
to industry insiders, it is perfectly legal to use publicly broadcast
US lottery numbers in the way they are currently being used locally. A
Bahamian, who wages a bet on the Miami lotto, for example, is not buying
into the Miami lottery. They are on betting they can guess the outcome
of the Miami lottery. Third parties are not permitted to use the logos,
slogans or trademarks of the originating lottery. The results, however,
are public knowledge, and third parties are free to use these numbers
how they see fit.
International
sports bookies do a similar thing when they establish bets on various
national sports associations, such as the National Basketball
Association (NBA). International bookies cannot use NBA trademarks, but
they do not need permission from the NBA to establish a bet around which team might win any particular game.
How
does this relate to the referendum? For one, it complicates the matter
highly, because the Prime Minister has said, should the people vote no,
he will enforce the law and shut down web shops. That sounds good, but a
government cannot arbitrarily shut down a business or revoke a business
license. The business has to have committed an actionable offence. If
the legal experts can effectively argue that existing statutes do not
regulate the activities they engage in, then the government would have
no legal basis to shut down web shops. They would have to enact new
laws before they could touch the web shops.
Web
shops are not going to roll over and disappear. They are going to
fight. I do not say this having some special insider information. It is
only logical. It is a million dollar business and the industry’s
financiers are heavily invested. Alternatively they will return to the
shadows or take their business outside the country.
Understanding
all of this, I maintained the view from before the general election
that a referendum on web shops made no sense. It was an unwise populist
promise. I still hold this view. Anyone with eyes to see knows well that
gambling is by and large embraced by Bahamians.
There
are as many web shops in the Bahamas as there are churches and liquor
stores. Perhaps the Bahamas Christian Council is jealous.
I
heard Mario Moxey of the Bahamas Christian Council (BCC) making asinine
arguments on the radio the other day about morality and gambling.
Morality is irrelevant to the public policy question at hand.
I
am not questioning the BCC’s right to spiritually advise its believers
about the immorality of gambling. Christians have a right to hold the
view that gambling is a sin. I do not believe they have the right to
impose that view on others, or to insist public policy reflect that
view. But I understand the church is desperately trying to be relevant.
Walk
through the doors of a web shop on any given day at any given time:
There will be people standing on line or sitting in front of the
computers who do not agree with the BCC’s perspective. They do not see
gambling as wrong. And it is their right to feel that way.
Gambling
may very well be immoral within the Christian worldview, but is that
really a basis on which the government should use public policy to
prohibit all Bahamians. Is there a valid case that can be made against
gambling that should not also apply to alcohol or tobacco consumption?
Clearly not.
The
government needs no permission to eliminate the grey areas which have
enabled web shops to thrive. And the law as it stands empowers the
government to grant exemptions for specific types of gambling, whether a
church raffle or an internet gaming shop. It is largely because of the
vocal opposition of the church and its political implications that the
government has not and would not act. The PLP gambled that a referendum
would provide the cover to act, one way or the other.
The
government has tangled itself in a real web. Should the people vote no,
the government will have an even bigger mess on its hands and the
potential political fallout will be far worse that what currently
exists.
The
tide seems to be turning against the government and not for any reasons
relating to how Bahamians actually feel about web shops or gambling.
The perceived backtracking on the national lottery election promise and
the lack of transparency around the government’s foreign consultants
is pissing the public off. It has raised suspicion of kickbacks. The
public seems ready to vote no, just to spite the government. If that
happens, the referendum will have caused much more problems than it is worth: unnecessary problems at that.
I
am undecided about going to cast my vote in the referendum; I feel it
will be a waste of my time. The referendum addresses nothing of
substance and there are no stakes in it for me. I am not a gambling
enthusiast, although I have patronized web shops before. So I would
suffer no great loss should web shops be closed down, but I would also
take no offence if they remained open. So why should I go vote?
Casino Gambling
I would go out and vote for a constitutional worthy gambling question.
The
government currently upholds a policy which allows non-Bahamians to
gamble inside the Bahamas, while prohibiting Bahamians from being able
to do so. Is such a policy discriminatory and/or unconstitutional and
should it be upheld? These issues are referendum worthy.
The
current casino policy is clearly discriminatory. It was instituted
during a time when Bahamians were seen as irresponsible and incapable of
handling the freedom to gamble. It was enacted by the government under
pressure by the church lobby pedaling the same social mayhem theory as
today. It was objectionable then and it is objectionable now.
There
is no way a foreigner should have the right to engage in any activity
in my country that I have no right to participate in. For me, there is
no other argument.
A
layman’s reading of the constitution, specifically Article 26, which
deals with how the constitution defines discrimination, suggests that
the existing casino policy is not unconstitutional. It seems the
crafters of the constitution fashioned a specific clause (26.4e) to
satisfy the church and casino lobby. (Thanks to Dr Ian Strachan for
opening up the discussion on this issue).
The
clause prohibits discrimination except where the law makes provision
for “authorizing the granting of licenses or certificates permitting the
conduct of a lottery, the keeping of a gaming house or the carrying on
of gambling in any of its forms subject to conditions which impose upon
persons who are citizens of The Bahamas disabilities or restriction to
which other persons are not made subject.”
In
essence, it seems the discriminatory practice existed prior to the
drafting of the constitution, and this clause was included in the
constitution to secure the status quo and to protect against any legal
challenge to the establishment.
The
clause does not, however, obligate or compel the government to support
the policy, which quite clearly discriminates against Bahamians. It only
provides legal cover to the government if it chooses to support such a
policy.
Should
the government support a policy that discriminates against Bahamians
gambling in casinos? No. If the government wished to have a referendum
to affirm the will of the people on this particular issue, it would
certainly be a vote worth casting. Why? Because it affirms a basic yet
fundamental principle of freedom and sovereignty.
The government would show real leadership by putting this question to rest.
If
Bahamians had more access to gambling opportunities there are obviously
risks, but the social mayhem theory being pedaled is a fantasy. The
gaming industry should not be a free for all. There should be government
regulation and protections put in place to address the social concerns.
But history has shown the futility of prohibition and wisdom compels us
to err on the side of freedom of choice.
I
will discuss the national lottery issue in detail next time. For now, I
will say the government’s actions have raised serious questions about
transparency and due process. It makes no sense to start the argument
with questionable evidence that concludes a national lottery is not
feasible. A referendum is needed to establish the will of the people. If
the Bahamian people desire a national lottery, then the government
should undergo a rigorous and transparent process to create one. It has
been done before in comparable jurisdictions and unless we are inept a
national lottery can apply here.
There
is obvious interest in a national lottery and the government’s actions
fly in the face of the public. As I understand it, there may be a new
announcement coming as early as today addressing the government’s
position on this.
I
will end where I started: There is no shame in doing the right thing.
If there is to be a referendum it should at least address questions
worth suffering the inconvenience of going out to vote. If there is to
be a referendum, it should address the big three: casino gambling, a
national lottery and online gambling/web shops. The government has
kicked the bucket down the road for too long. Let us not waste anymore
time.
November 12, 2012