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

It would be most appreciated if Honourable Members of the House of Assembly and the public become familiar with the terms of the Investment Policy of The Bahamas

Communication by
Rt. Hon. Hubert A. Ingraham
On National Investment Policy and
Investment Promotional Materials

Mr. Speaker,

I am pleased to table for the information of Honourable Members a copy of the new Bahamas Promotional Brochure “The Bahamas: A Paradise for Many Reasons” together with sector information flyers on the tourism and hotel sector, international financial services and Freeport, Grand Bahama.

Members will recall that the brochure was released to the Bahamian media immediately prior to my recent attendance at the IDB Annual Meetings in Calgary, Canada and my subsequent participation in a Bahamas trade and investment mission in Calgary and Toronto.

I advise that the sector information flyers have been translated into the Chinese languages of Mandarin and Cantonese, as well as in Spanish. Translation to Portuguese and French are contemplated in the near future.

Mr. Speaker,

This updated version of the brochure, first published by my government in the 1990s, takes into account developments and changes in the investment and business climate of The Bahamas over the last 15 years or so.

In particular, I draw Honourable Members attention to changes to the National Investment Policy which are incorporated in the brochure. Our National Investment Policy, as Honourable Members are aware, is an evolved policy, some aspects of which date back to the 1960s.

It is neither an FNM nor a PLP policy, and is intended to be a national policy to guide policies of Government, which governments can change when they see fit.

The policies were first articulated and published in a formal way in 1993 as my Government sought to bring increased certainty and transparency to our business and investment environment, thereby enhancing the country’s attractiveness to the foreign direct investment required to foster economic growth.

It would be most appreciated if Honourable Members and the public become familiar with the terms of the Investment Policy of The Bahamas. Much misinformation is communicated from time to time about the investment policies of The Bahamas.

The amendments to the National Investment Policy include:

1. The minimum dollar requirement for direct foreign investment in a commercial undertaking has been increased from $250,000 to $500,000.

2. The minimum required value of a residence acquired by an foreign person for the purpose of seeking accelerated consideration of permanent resident status has been increased from $500,000 to $1.5 million. Honourable Members would recall that this figure had previously been increased from $250,000 to $500,000.

This does not mean that someone cannot obtain permanent residency in The Bahamas if they purchase a residence for a value of less than $1.5 million. What it does mean, if you are purchasing one (a residence) for $1.5 million or more, you will get speedy consideration of that application by the Government agency – i.e., you would be pulled out from the pile and processed speedily. In fact, provided you have all of the required documentation, it is expected that you would be able to have a response of a “yay” or “nay” within 21 days of the completed application being in the hands of the Department of Immigration. We seek to encourage persons who are purchasing or expending that sort of money plus, for a residence in The Bahamas.

There is no requirement in terms of our policy for persons coming to The Bahamas to attend a Directors Meeting of a company incorporated in The Bahamas to obtain a work permit. We want to encourage and facilitate such persons in entry into The Bahamas; we want to facilitate them and accommodate them. And we want to get out of the business of nickel-and-diming them.

While we have a homeowner’s card which permits someone with a residence in The Bahamas to enter as often as they like during the course of the 12 month period in respect of which the card is valid, you need not have a homeowner’s card to be facilitated in coming to The Bahamas.

Canadians and Americans as examples are able to come to The Bahamas if they have a residence in The Bahamas and stay for up to eight months. And so Immigration Officers in places such as Eleuthera, Exuma and Long Island who have been giving such people 30 days instead of the length of time they are required to be in The Bahamas, ought to discontinue doing so. It is not the intention of the government of The Bahamas to force a homeowner to obtain a homeowner’s card – it is something they can access if they choose, but they do not have to access it.

We have many residents – Canadians and Americans – who own homes in the Family Islands and elsewhere, who come down for many months out of the year and who spend money in our economy. And I am tired of getting complaints about how they are being hassled at various places in terms of the length of time they can stay in the country.

3. The restriction prohibiting international investments in restaurants and or entertainment facilities (e.g. theme parks) unless a part of a hotel resort, has been eliminated.

As you will know Mr. Speaker, the amendments made to the Hotel Encouragement Act for restaurants and other tourist related businesses in areas frequented by tourists but not within a hotel, have been in effect now for probably two years.

The revised Investment Policy also makes provision that approved investors in major development projects which investment creates employment and business opportunities for Bahamian citizens and who own or acquire a residence in The Bahamas, may be granted Permanent Residency status with the right to work in their own business.

Examples of this abound, Mr. Speaker: Butch Stewart who owns Sandals, John Issa who owns Breezes or the man who owns Robin Hood food store, are permanent residents with the right to work in their own businesses in The Bahamas. And that is an area that we say was reserved for Bahamians - but he has the right to work.

Permanent Residents continue to be required to register all real property acquisitions with the Investments Board. The fact that you are required to register it causes us to be in a position to know what non-Bahamian citizens own in our economy in terms of real estate, and we regard that as critical and vital national data to have.

As regards the Investment Policy concerning the registration of land acquisition by international persons generally, Members would recall that in 2009, the International Persons Landholding Act was amended to provide that all international persons only need register acquisitions of owner-occupied property of two acres and under - reduced from five acres.

You would recall Mr. Speaker, that back in 1993, we passed a law which remained in effect until 2009 that permitted a foreign person to purchase property in The Bahamas for the purpose of constructing a residence/house of five acres or less.

That served us well for 15 years or more. There were concerns expressed by a number of Bahamians and others, and we therefore reduced the acreage to two instead of five. Now such persons are still required to provide us with information about the source of their funding, their character certificates and the like, because notwithstanding that they are required to register it, we do want to know who is in The Bahamas, who owns property in The Bahamas and if the question arises in the future, the Government wants to be in a position to be able to respond to those questions.

And so while some people find getting a police certificate, getting a letter of reference from the bank and other such information offensive and a nuisance, it is not a requirement that we can see our way clear to remove. The Government does not grant permission for you to do so, but it requires this additional information in order for you to register your acquisition in The Bahamas.

If you are acquiring property of more than two acres, then you need a permit from the Government. You have to apply and the Investment Board reserves the right to say yes or no to any such application.

Mr. Speaker:

Every effort has been made to ensure that the Investment Policy is expressed in as apolitical way as possible taking into account the reality that our investment policies generally reflect the time honoured acceptance that the Bahamian economy is primarily driven by the tourism and financial services sectors, areas overwhelmingly involving international participation and investment.

Further, the policy reflects successive government’s dedication to promoting and incentivizing investment and development in light manufacturing and industry primarily in Grand Bahama, also with international participation.

And, finally, the Policy reflects the Government’s interest in promoting investment in the agricultural and marine resources sectors.

I invite Honourable Members to acquaint themselves with the policy, and with the booklet.

Fifteen years ago when we produced this book it was printed outside The Bahamas. This book was now printed by the Government Printing Department.

Finally Mr. Speaker, the policy is not a policy in concrete, it is a policy that continues to evolve, and the extent to which Members on either side have suggestions about amendments to the policy, they are invited to do so.

The next investment promotional trip of The Bahamas will be sometime this summer in Brazil, which I propose to lead.

18th April, 2011

bahamas.gov.bs

Bahamas Blog International

This Nation’s Bevy of Challenges

The Bahama Journal Editorial



With this nostrum as opening gambit, we take note of the fact that, for what now seems a fairly long season, the Bahamas seemed to conclusively demonstrate that development in a small island developing country could be successfully driven by foreign direct investment.

And for sure, Bahamians could and did exult in their good fortune by assuring themselves that, these salutary changes had come about due to their own initiatives.

Indeed, there was every indication that, the Bahamas had somehow or the other managed to escape its long history of boom and bust at the economic level.

And so it arose that, they decided to praise the late Sir Stafford L. Sands for being the financial genius behind the so-called miracle of year-round tourism to the Bahamas.

We now know that this was an illusion.

As the same record would attest and confirm: while Sir Stafford was –in truth and in fact – a major player in the development of the tourism industry, other forces – most of them external to the Bahamas- played crucially important roles in this transformative process.

Highest on the list of external forces would be the on-set of the Cuban Revolution and Cuba’s isolation from trade with the United States of America.

It was this external factor that has driven the Bahamian economy over the course of the past fifty years or so.

With this development came that transformation of the Bahamas which allowed the bulk of its people a first opportunity to turn its collective back on a development model predicated on seasonal tourism, niche banking, fishing, farming and other allied occupations.

This development brought with it ancillary political changes – some of which promised Majority Rule and some economic empowerment for those who were heretofore socially excluded and economically marginalized.

While some successes have been scored; there is every indication that some of these now run the real risk of being lost as a consequence of the hard times that now prevail.

In addition, there is every indication that things are set to be difficult for at least the next decade or so.

This situation stands in direct contrast to those days when money was in abundance and when practically everybody who was anybody could make a fairly decent living.

Things are now trending downwards; and so, as things go and grow from bad to worse – Bahamians on either side of the political divide have taken to blaming each other for this nation’s bevy of distresses.

While this ‘game’ might provide entertainment galore for those who are tuned in; we daresay that, this does the nation itself no real good.

For our part, then, we would sincerely suggest that, having grown accustomed to one version of the so-called good life [that is to say, a life driven by easy money] very many Bahamians are today panicking; this coming packaged in with the prospect that hard times might be here to stay.

While we are optimistic as regards our prospects for the long-term; we are today pessimistic for the short-term; this due to the fact that, the Bahamian people are yet to determine what they want and would have as regards real leadership.

In the interim, things threaten to disintegrate into a state akin to chaos.

And of course, this can lead to its own sad denouement in even more social distress.

Here take note that on occasion, we have bemoaned the fact that, the Bahamian people are being routinely failed by their leaders.

Evidence for this failure can be seen in practically every major institution; whether reference is to those who would lead in the field of faith and belief; education; government; the home or at the work place.

In addition, there is no gainsaying the fact that, there are very many Bahamians who are today mired in distress; with some of them teetering on the edge of despair.

And yet there is more bad news; this time around the reference we make has to do with what seems a Bahamian penchant towards dependency and lack of confidence in their own innate ability.

This neatly explains how it arises in case after case that Bahamians are loath to respect their own when they are put in positions of authority and power – thus the pre-eminence they give to foreigners and to most things foreign.

For a season, this way of things surely worked its magic.

But since nothing lasts forever, these balmy days are now receding. As they become history, a new order beckons; this being one where Bahamians will be obliged to work harder, produce more so as to become more self-reliant.

In this regard, we envisage the coming of that day when, the Bahamian people will have a national economy that walks – so to speak- on two legs; with one being foreign and the other Bahamian.

December 29, 2010

The Bahama Journal Editorial

Bahamas Blog International

Bahamas' recession woes are 'not close to being over by any stretch of imagination' - due to the nation's dependence on external forces that are themselves struggling

Recovery prospects 'nil' over short-term
By NEIL HARTNELL
Tribune Business Editor



The Bahamian economy's short-term recovery prospects are "nil", the Bahamas Chamber of Commerce's president warned yesterday, warning that the recession was "not close to being over by any stretch of the imagination" due to this nation's dependence on external forces that are themselves struggling.

Khaalis Rolle said the Bahamas' economic model made it almost totally dependent on foreign direct investment (FDI) inflows and US tourist visitor/spending levels to drive recovery, and both were under increasing threat from the possibility of a 'double dip' recession in North America and elsewhere, with the next three-six months being key.

"The prospects for recovery in the short-term are nil," Mr Rolle told Tribune Business. "Mr prediction has always been for stability over the next 24-36 months, and then we will see an improved level of confidence come back."

Adding that economic recovery "isn't automatic", the Chamber president said: "If follows the typical economic model, and under that model, when we're totally reliant on the consumer from the US to come here as a tourist and spend money, you're not going to recover."

A rebound would only be possible, Mr Rolle said, if there was an immediate upsurge in US business and consumer confidence, and a reduction in that country's employment numbers, something that was unlikely given the seeming possibility of a 'double dip' US recession.

Foreign

"Secondly, the Bahamian model of economic activity is completely and utterly built on foreign direct investment, and if foreign direct investment is at a standstill, everything else is at a standstill," he told Tribune Business.

"We have a ways to go. It's not, by any stretch of the imagination, close to being over. We have some challenges." US economic policy over the next three to six months, Mr Rolle said, was likely to determine whether it, and by extension the Bahamas, went "deeper into recession".

He was backed yesterday by his predecessor as Chamber of Commerce chairman, Dionisio D'Aguilar, who told Tribune Business that while many Bahamian businesses had "bottomed out" and settled into their "new normal", there was little for the private sector and consumers to get excited about in terms of recovery prospects.

"I think most businesses have settled where they are going to settle," Mr D'Aguilar said. "Most businesses have completed their decline and have bottomed out, and I think this is the new normal.

"Businesses are going to have to fight to get any substantial double digit growth in revenue.

"Indeed, if there's any growth at all it will be in the 1-3 per cent range. I don't see anything on the horizon to get us terribly excited.

"Ray Winder summed it up wonderfully [in yesterday's Tribune Business] in that the only item that will cause an uptick is foreign direct investment. There is nothing else out there."

Both current and former Chamber presidents thus agreed with Mr Winder and the Central Bank of the Bahamas, as each expressed growing concern yesterday over the prospects for a Bahamian economic recovery occurring in 2011. Mr Winder even suggested that without a major foreign direct investment rebound, a recovery in this nation may not be seen until 2012 at earliest.

The private sector's weakness was highlighted by the Central Bank's report on monthly economic and financial developments in July, as some 27 per cent of all commercial loans to Bahamian businesses and firms were said to be in arrears.

The Bahamian commercial banking system has an estimated $1 billion in outstanding credit to Bahamian companies, and the Central Bank reported that commercial delinquencies increased by $2.1 million to $270.6 million in July, as a $1.4 million decrease in short-term arrears was outweighed by a $3.5 million increase in non-performing loans.

Mr Rolle acknowledged that some companies with overdue loans were likely to go out of business, although those with greater strength might have the ability to refinance at more favourable rates and obtain some "breathing space".

Describing the private sector's health, Mr Rolle told Tribune Business: "I think the current state is tenuous at best, especially small and medium-sized businesses and businesses that rely on services. I know a lot of service businesses are being impacted. Companies in property management, facilities management, janitorial services, who are cutting back. We've got some challenges."

September 03, 2010

tribune242

Bahamas Blog International