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The Nassau Street Court Complex is 75-80 per cent completed and is expected to be occupied within six months’ time.
Public Works and Transport Minister the Hon Neko C Grant along with Permanent Secretary Colin Higgs and other Ministry officials led a tour of the state-of-the-art court complex on Thursday, September 9.
o The article is the submission by George A. Smith to the Constitutional Commission on May 29, 2013.
Let me congratulate commissioners for undertaking such an important task at this stage in our beloved nation's development. I personally think that it is a very noble cause for a people to look inward and to assess the path that they wish to tread in the coming decades so as to create a more just, fair and prosperous society.
We must reflect on our past and embrace the challenges and expectations of the future so that we could continue to build a nation of pride, faith and unity; a society where people matter more than things and where human dignity is paramount.
As you are aware, I am fortunate to have been afforded the opportunity to play a role in the 1972 London talks that led to the creation of our nation-state and the culmination of independence. That was a sterling experience for me and the other signatories at the conference and often as I reflect on years past I not only reminisce of the intellectual depth of the delegation, but our collective resolve to fashion a nation on some core principles.
Those were the principles of fairness, equality, industry, solidarity, discipline, loyalty, the right of self-determination and the abiding resolve to chart our own path. We made our work the centerpiece of our political careers.
In my reflection, I also cast my eyes to The Bahamas of the years following our liberation on January 10,1967 and see the magnificent accomplishments that have been made on our national journey.
I remain steadfastly proud of our nation, and yet find cause to pause and think of the wonders that lie ahead if only we restore our nation to the path of prosperity, industry, safety and common decency and respect for humankind.
I, therefore, trust that this reform process began the needed mature dialogue in The Bahamas, throughout every island, among every Bahamian and in every community, of what we can achieve together, working alongside each other, to chart a better and more progressive course for our nation in her next 40 years and beyond.
There is no denying the fact that The Bahamas of 2013 is fundamentally different than The Bahamas of 1972. Our march to independence was fought through the 1972 general election, which gave to the Progressive Liberal Party the mandate to proceed to independence from imperial Great Britain.
This present exercise is different. This process is not intended to be dominated by partisan politics. At its heart must be the further education of the Bahamian people and their leaders; it must include the creation or stimulation of a national conversation through informed discussion amongst the citizenry and key stakeholders. I salute this commission for its effort in striking the correct balance thus far.
I also wish to say, however, that the process demands careful and thoughtful deliberations. It must not be seen to be rushed or to be hijacked by special interests. It must be rooted in the law and the people's welfare. If this is followed, then at the end of it all we will have an amended Constitution that reflects the new Bahamas and is worthy of the Bahamian people.
I urge this commission to do its best and to work toward a more perfect, easy-to-read, modern, yet progressive, Constitution.
Thoughts on constitutional change
There is no doubt that our Constitution has steered us well over these past 40 years. We have had no serious constitutional challenges and, in many respects, our Constitution has guided our democracy to greater stability.
We have had four quiet and peaceful changes of government (1992, 2002, 2007 and 2012) and although the electorate is fairly evenly divided between the two major political parties; on given issues there is a keen sense that the people of The Bahamas can put aside their partisanship for the national good. This is a defining feature of our growing maturity as a people.
There are many examples that have shown over the past 40 years that the process for constitutional change is ripe at this time. Forty is a very significant number. Throughout the biblical narrative there are lessons to be learnt. Forty is a period of transformation, a time of fullness, a time of renewal, a time of beginning. Inspired by this knowledge, I am happy to share my thoughts on what I think should be reflected in our Constitution:
1. The preamble must continue to speak and examine our enduring values. These values remain industry, loyalty, an abiding respect for traditional values and the rule of law. I would now only strongly advise that there be recognition of our growing multiculturalism and different spiritual beliefs in the society.
2. I firmly believe that no position in The Bahamas should be beyond the reach of a Bahamian. Therefore, it follows that the Office of 'Head of State' should be held by a Bahamian. We should create a Republic (The Republic of The Bahamas) with the duties presently prescribed for the governor general to be carried out by a president, in addition to some added responsibilities. The president should be elected by a parliamentary vote supported by no less than two-thirds of all the members. The office should have specified constitutional powers, which can be a vital check on abuses in the system. A vice president should also be elected in the same manner.
3. I consider that we should abolish the existence of the Senate and move towards a unitary parliamentary democracy. The Senate has long ceased to perform in the intended manner. Some present responsibilities of the Senate could be supplemented through the Office of the President.
4. On the issue of citizenship, I am a supporter of a more modern approach to citizenship, one that has its connection to the new paradigm of national development. In this regard, the Constitution must remove any and all ambiguities that exist relative to the rights to citizenship. We should expand the existing provisions and remove the prohibition which prevents Bahamian mothers from conferring citizenship to their children. And, I firmly believe, that we should allow for those persons who were born in The Bahamas and have continuously resided in The Bahamas for 18 years or more, and who have a close connection and affinity to The Bahamas, to become citizens of The Bahamas upon their making application for citizenship. The Constitution should remove all discretions that presently exist in the law as to their right to become Bahamian citizens. However, if there be any strong legal requirement for codified exceptions in the Constitution, they should be limited to matters of national security or public policy. I further advocate that the foreign spouse of a Bahamian woman, who has demonstrated close affinity to The Bahamas, should be guaranteed the right to reside and work in the country subject to strict guidelines.
5. In respect of the fundamental rights provisions, I also hold the view that there should be some recognition in our Constitution to prevent discrimination on the grounds of sexual preference or orientation. This will be in line with the Universal Declaration of Human Rights.
6. Any provision in the Constitution which permits the conduct of a lottery or the carrying on of gambling which impose disabilities or restrictions on the citizens of The Bahamas must be eliminated. We can no longer tolerate the existing practice.
7. I believe that there should be a provision that expressly prohibits the right to bail in capital cases or serious criminal matters and similarly the issue of the death penalty should be addressed and settled. I believe that the death penalty should be abolished.
8. I support the creation of an 'Ombudsman', with specific jurisdiction to safeguard the community in its dealings with the government agencies by: Correcting administrative deficiencies through independent review of complaints about government administrative action; fostering good public administration that is accountable, lawful, fair, transparent and responsive; assisting people to resolve complaints about government administrative action; developing policies and principles for accountability; and, reviewing statutory compliance by law enforcement and other such agencies with like powers.
9. It is my view that time has taught us that many elected politicians do not recognize and respect the age-old conventions that are not written in the Constitution. We need to find a means to incorporate some of these conventions, certainly the most important of them in our Constitution or in an addendum to the Constitution. I encourage the following safeguards: There should be a mechanism to allow for a recall of members of Parliament based on a petition presented to the speaker of the House of Assembly of at least 50 percent plus one of the electors in the constituency; there should be a requirement for all MPs to devote the necessary time in order to give full attention to the people's needs and concerns with the assistance of generalist staff and with functional committees of the House; and, there should be a limit imposed on the amount of money spent in any constituency in any general election or by-election, such sum not to exceed a percentage fixed to the total numbers of electors. In fixing the amount, consideration should also be given to the geographical features of the constituency.
10. There should be an independent boundaries and electoral commission whose composition is set out in the Constitution. Such a commission should be comprised a judge of the Supreme Court, the ombudsman, the clerk of the House; the parliamentary commissioner, one non-MP appointed by the prime minister and one non-MP appointed by the leader of the opposition. Guidelines for the conduct of the commission must be clearly defined.
11. Given the financial abuse that the nation has endured in recent times with the large size of Cabinets, the Constitution should also set a maximum number of ministers. I propose a Cabinet no larger than 30 percent of the members of the House. This could result in enhancing the role and value of the backbencher in our parliamentary system and thereby serve as a further check, in addition to the opposition, to the abuse of power by the executive.
12. There should be a provision that provides for the appointment of a deputy prime minister based on the same principle as that which applies to the appointment of a prime minister.
13. I also support radical reform of the public service and the elimination of the Public Service Commission and the Public Service Board of Appeal. Similar progressive changes should occur with the Police Service Commission and other commissions. To bring the public services into the 21st century, serious consideration must be given to the elimination of the bureaucracy around the hiring, discipline and termination of public officers.
14. I have the highest regard and great confidence in the ever-growing sophistication of Bahamian professionals. I think that this is most notably demonstrated in the many talented Bahamian jurists who have served with distinction and intellectual honor. I, therefore, support the full Bahamianization of the judiciary. I, too, support the judicature being comprised of the Magistrates Court, the High Court (replacing the Supreme Court) and the Supreme Court (embodying the current functions and jurisdiction of the Appeal Court, as the final appellate court for The Bahamas). The Supreme Court will thereby replace the Privy Council for both criminal and civil cases. In order to dispel the anomaly that currently exists in that the chief justice, who is the head of the judiciary, can be overturned by the current Court of Appeal or the Privy Council. In my opinion, the chief justice of the Supreme Court (that is, the reconstituted highest court) should indeed be 'the chief among all justices, at the pinnacle of the judiciary'. The chief justice will, therefore, be the head of the Supreme Court, our final court. I also support the increase in the retirement ages of justices of both courts - say at 75 years (subject to good health and mental capacity). When consideration is given to the judicature, we should conclude that the judicature should not be any different from any other august institutions of state. If we are building truly Bahamian institutions, we need to overcome the shallow insecurities and reservations that have prevented our judiciary from being Bahamianized. After all, real independence entails building Bahamian institutions of state that are populated by highly trained and qualified Bahamians.
Commissioners, you have undertaken a vital and critical work. I implore you to summons your intellectual power and national pride as you carry out your lofty and solemn task. What you do should set the tone for our future national development. A collective resolve must be to create a better, just and fairer Bahamian nation that protects the fundamentals of our Constitution and defend the people's best interest.
I pray that you serve The Bahamas with distinction and that the all-wise God bless and guide you.
o George A. Smith is a former member of Parliament and Cabinet minister of The Bahamas.
The Court of Appeal has ruled against an attempt by UBS (Bahamas) to appeal a decision of the court to the Privy Council in London saying the case at hand is not one of general public importance.
UBS had sought leave to appeal to the Privy Council the Court of Appeal's ruling from July 31, 2013, in which it ruled in favor of Standard Chartered Bank (Switzerland) in a matter relating to a $34.2 million claim by Standard Chartered Bank on UBS (Bahamas).
In that ruling, reviewing a decision of the chief justice which had struck out the Standard Chartered's claim, Justices Anita Allen, Christopher Blackman and Neville Adderley sent the case back to the Supreme Court for retrial.
The judges said at the time that the chief justice's ruling on the matter was "unsafe", and based on "incomplete evidence".
However, UBS (Bahamas) had, according to the most recent ruling from the Court of Appeal, sought to challenge its decision to send the matter back for a re-trial on numerous grounds that "for the most part, revolve around this court's purported failure to consider and make a determination on the facts, and its purported failure to apply the relevant law."
In response, the Court of Appeal held that the issue at hand is not "one of general public importance" and they will only be "properly answered" if the retrial that was initially ordered by the Court goes ahead.
"We believe it would be premature to send the matter to the Privy Council when all of the facts have not been established," said Justices Anita Allen, Stanley John, and Abudulai Conteh.
_The case revolves around a number of shares held as collateral for a loan by UBS (Bahamas) which the Bahamas office of the Swiss bank had agreed to transfer to Standard Chartered Bank (Switzerland), according to court documents.
The shares were beneficially owned by a mutual customer of the two banks, CIF, in 2008, who owed UBS (Bahamas) "in excess of $30 million".
According to the Court of Appeal judgment on the matter, an agreement to transfer the shares from UBS (Bahamas) to Standard Chartered (Switzerland) took place via the SWIFT messaging system in November 2008, after CIF obtained a loan from Standard Chartered Bank to pay its debt to UBS (Bahamas).
The two banks agreed to transfer the shares to Standard Chartered (Switzerland) once the Swiss bank sent $34.2 million - the amount of its loan to CIF to cover its UBS debt - to UBS.
On November 12, 2008, Standard Chartered (Switzerland) transferred the funds to UBS (Bahamas) and UBS (Bahamas) began initiating the process of transferring the shares - comprising 98,068 shares in Kingate Global Fund Limited and 36,356.58 shares in Thema Fund Limited.
However, in the meantime, the Bernie Madoff fraud led to a collapse in the value of the shares and a suspension of trading in them.
"The value of the shares collapsed as a result of the well-publicized Bernie Madoff fraud. On the 12th of December, 2008, before the shares were transferred, trading in the shares were suspended and this action was commenced on the basis that the shares could no longer be transferred," said the judgment on Standard Chartered's appeal against the chief justice's ruling.
"The plaintiff (Standard Chartered) had requested the return of the $34.2 million on the grounds that as the shares had not been and could no longer be transferred to it, the condition for payment had not been satisfied and therefore the plaintiff said it was entitled to the return of its money."
Standard Chartered (Switzerland) asserted that since the shares were not transferred following its transferral of $34.2 million to UBS, the "consideration for the payment under the contract had wholly failed".
However, UBS said that "it had performed all that was required of it under the contract".
Prime Minister the Rt. Hon. Hubert Ingraham tabled Amendment Bills in
Parliament Monday, July 26th, 2010 which would change the fee structure for matters
before the Supreme Court.
Instead of lawyers having to make out multiple cheques for small
amounts to process matters before the Court, each matter will now
require the payment of a single fee.
This is expected to make the processing of matters before the Court quicker and more efficient.
NASSAU, The Bahamas - Community youth were drawn by the hundreds and encouraged to compete with each other on the basketball court, rather than criminal court.
Young men between the ages of 16 to 21 represented basketball teams from all nine centres in New Providence, as well as other areas, and competed at Englerston Park, Christie Park and Pinewood Park from dusk until late into the night.
"The objective of the whole thing is to get the young men to get to know each other from the different areas and to compete among each other, but to do it in a healthy environment and learn how to get along with each other through the sport of basketball," said Ella Lewis, New Providence Urban Renewal Coordinator.
"It's been extremely successful and every night the court is filled. We were wondering and see this is definitely the way to go in reaching the young men because they will come out to this. We have more than 300 people on the court both watching the game and participating. They are coming from all the different areas."
From March 30 to April 3, Urban Renewal Community Programme's nine centres held an Inter-Urban Basketball Jamboree, under the theme "You're My Brother". A spirit of community empowerment attracted thousands of spectators across New Providence communities for five days to watch teams play against each other for championship trophies from Englerston, Farm Road, Yellow Elder, Pinewood, Nassau Village, Bain & Grants Town, Elizabeth Estates, Flamingo Gardens, Fox Hill, Fort Charlotte, Kemp Road, and St. Cecilia.
Civil Society Says Accession to the Rome Statute Will Pave the Way for the Establishment of a Culture of Peace and Justice
York, USA - The Coalition for the International Criminal Court today
called on Nepal to demonstrate its commitment to justice and the rule of
law by acceding to the Rome Statute of the International Criminal Court
(ICC)--the world's first and only permanent international court to
prosecute war crimes, crimes against humanity and genocide. Nepal,
together with Rwanda, is the focus of the Coalition's Universal
Ratification Campaign (URC) for August 2012, a monthly campaign launched
to call upon a different country to join the Rome Statute--the ICC's
HOUSE OF ASSEMBLY
HON. TOMMY TURNQUEST, M.P.
MINISTER OF NATIOAL SECURITY
COMPENDIUM OF ANTI-CRIME BILLS
Wednesday 19th October, 2011
Developers behind Cotton Bay Estates Limited have come up short in a Supreme Court ruling that denies the validity of $11 million worth of performance bonds.
The ruling, filed on behalf of Judge Stephen G. Isaacs, sided with CIBC FirstCaribbean International Bank (Bahamas) and Penn's Renovation & Construction Company, claiming "the bonds are not valid and enforceable against the bank".
During the 2012 general election, Sir Lynden Pindling's widow took to the political stage as a part of the PLP's strategy to use the late prime minister's legacy to help the party secure victory. It is debatable how successful was the strategy...
Nassau, Bahamas -
Chief Justice Sir Michael Barnett
is pleased to announce the appointment of Justice Roy Jones as a Justice of the
Supreme Court and Mr. Milton A. Evans as an acting Justice of the Supreme Court.
Both Justice Jones and Mr. Evans will be sworn in by the Governor General on
Tuesday, 1st February, 2011.
Justice Jones served as a Justice
of the High Court of Jamaica from April, 2002 to December, 2010. On 20th
December, 2010, he was sworn in to act as a Justice of the Court of Appeal of Jamaica. Justice
Jones also served as an acting Justice of the Grand Court of the Cayman Islands between January, 2010 and March, 2010...
New York, NY --
Coalition for the International Criminal Court (CICC)
--a global network of more
than 2,500 civil society organizations in 150 countries advocating for a fair,
effective and independent ICC and improved access to justice for victims of
genocide, war crimes and crimes
called on Egypt to demonstrate its
commitment to international justice and
the rule of law by ratifying the Rome Statute of the International Criminal Court
(ICC) and the Agreement on
Privileges and Immunities of the
Court (APIC). The Coalition has selected Egypt as a focus for its May 2012 Universal
Ratification Campaign (URC), a monthly campaign launched to encourage countries
to join the Rome Statute. Recent parliamentary elections and
upcoming presidential elections make this an opportune time for Egypt
to display its commitment to justice and
the rule of law by joining the Rome Statute, the Coalition said...
Environmental and animal rights advocates scored what they called "a major victory after a 24-year long battle" this week when the Court of Appeal dismissed the government's appeal of a Supreme Court decision that allows for the opening and operation of an island attraction across from the western end of Cable Beach.
The case involved the island re-named Blackbeard's Cay opposite Sandals Royal Bahamian, a project reportedly costing $8 million, intended as an offshore excursion for Carnival Cruise Line passengers.
Nassau businesspeople, including retailers and operators of numerous other attractions, argued against touristic development of the island so close to Nassau, saying diverting as many as half a million passengers away from known establishments, museums, restaurants, fishing, boating and snorkeling excursions would lead to serious economic repercussions, including job loss. The threat of economic loss did not deter St. Maarten businessman Samir Andrawos and Bahamian partners from continuing.
It wasn't until late 2013 when Save The Bays' legal team agreed to take on the case on behalf of reEarth to raise environmental, development processing and animal rights issues that the courts became involved, catapulting the conversation from what's good for local business, investment and jobs to what's legal in the development process.
When the case went to court in April, lead attorney Fred Smith, QC, senior partner at Callenders & Co. Grand Bahama, told the Supreme Court the evidence pointed to a "tsunami of disregard" for due process and the rule of law as civil servants rubber-stamped approvals for the project at the behest of their superiors.
"The Cabinet and the minister are regarded as the extreme authority on what should happen, regardless of what Parliament has legislated," he told the Court of Appeal.
Attorneys presented evidence showing the Blackbeard's Cay project moved forward in the absence of necessary site approvals, environmental studies, public hearings and proof of the developer's compliance with mandated conditions. In allowing this to happen, Smith said, the government contravened the provisions of the Planning and Subdivisions Act (PSA), the Conveyancing and Law of Property Act (CLPA) and the Marine Mammal Protection Act (MMPA).
In July, Supreme Court Justice Stephen Isaacs quashed the permits, agreeing with the attorneys' assertion that "the development has been carried out, and continues to be carried out, unlawfully".
Government officials including the minister of agriculture, marine resources and local government, the director of fisheries and marine resources, the Town Planning Committee and the minister responsible for Crown lands, appealed the case. When they failed to file the record of appeal in the stipulated time, the appeal was dismissed. The dismissal came via an order signed in mid-November but mailed and received by the lawyers on December 4.
The dismissal has left those who have been arguing for an end to unregulated development and the protection of animal rights ecstatic.
Along with matters surrounding the permitting process, at the heart of the issue was the future of penned dolphins at the island. reEarth presented evidence during the April trial showing that the nine dolphins had no shade, were in shallow waters and a substandard size pen -- all in violation of Bahamian law and international standards.
"This has been a long, hard 24-year battle," said Sam Duncombe, a director of Save The Bays and founder of reEarth which has collected 96,000 signatures on a petition calling on The Bahamas government to protect dolphins and other marine mammals.
Duncombe points to falling audience numbers and share value for Sea World, saying that films like Blackfish have opened people's eyes to what confinement does to these self-aware and highly socialized mammals.
"The entire industry rips these mammals' families apart and just like humans, each dolphin has a 'place' in its family structure," she said.
"The petition calls for an end to mammal facility breeding programs going forward, prohibits future imports or exports of marine mammals to The Bahamas and looks to a tiered closure of all marine mammal facilities in The Bahamas with a plan to house retired dolphins in a sanctuary funded by the very industry that has benefitted from their enslavement for decades."
While Duncombe is pleased that the victory in the current case is bringing new attention to the plight of animals for entertainment, Smith and other Save The Bays directors said the case shows that governments can be held accountable for obeying their own laws when it comes to development.
The most recent court action brought a smiling, "victory for the rule of law" accolade from Save The Bays director and Bahamas Waterkeeper President Joseph Darville.
"As the president of Waterkeeper Bahamas and the education director of Save The Bays, I would like to state my joy and pleasure about the outcome of this case which has restored my confidence in the independence of the judiciary of The Bahamas," said Darville.
"As a Waterkeeper, I am concerned about every element of water in The Bahamas and about these wonderful animals that have aligned themselves so much with the consciousness of human beings.
"We have an obligation to treat them in a humane manner. As a director of Save The bays, I salute reEarth and our legal team for their passionate insistence in bringing this debacle with the powers that be to a successful and glorious conclusion."
Duncombe echoed appreciation for the legal team, adding that the case should make The Bahamas think twice about the face it shows the world in dolphin care.
"reEarth is very grateful for the support of Save The Bays and of course our awesome legal team," said Duncombe.
According to the judge's ruling, the Ministry of Agriculture is required to take responsibility for the fate of the dolphins at Blackbeard's Cay, placing them in an appropriate location.
"I would be happy to work with the minister to ensure that when these poor dolphins that have suffered so much are moved. They will have a new home where they can lead lives that are as secure and free as possible," said Duncombe.
"Until they are assessed, they cannot be released into the wild because they have become dependent on being fed and would require rehabilitation to make sure they could fend for themselves. In the meantime, we can protect them in a sanctuary and the silver lining in this case may just be that it leads to the first dolphin sanctuary in The Bahamas -- something which reEarth is working on and something that would be fantastic for tourism as well as for these amazing mammals we share the planet with who call each other by name, swim 50 miles a day and make choices about their daily lives just as humans do. This would send an enlightened and positive message to the world that The Bahamas cares and is tune with the ever-expanding global awareness about the welfare of marine mammals."
PRIME Minister Hubert Ingraham revealed yesterday that Senior Justice Anita Allen will be appointed as President of the Bahamas Court of Appeal in January 2011, with incumbent President Dame Joan Sawyer set to retire this month.
Prime Minister Ingraham revealed the intended appointment at a televised press conference at the British Colonial Hotel yesterday.
Senior Justice Anita Allen will be made President of the Court of Appeal in January, Prime Minister Ingraham said yesterday.
The constitutional retirement age of a Court of Appeal Justice is 68, however Dame Joan will turn 70 on November 26 and complete the two-year granted extension.
Dame Joan was appointed President of the Court of Ap ...
Hague--The Coalition for the International Criminal Court--a global
network of more than 2,500 non-governmental and civil society
organizations in 150 countries--today urged states to use the extended
nomination period for the upcoming International Criminal Court (ICC)
elections to continue to identify the most highly-qualified candidates
for the available positions. States parties to the Rome Statute--the
ICC's founding treaty--now have until 16 September 2011 to nominate
candidates for six judicial vacancies. The election, together with that
of the Prosecutor and six members of the Committee on Budget and
Finance, scheduled to take place at the tenth session of Assembly of
States Parties (ASP) in December 2011, represents the most significant
changeover in ICC officials since the creation of the Court...
The Court of Appeal will today hear arguments on the appropriate sentence for a man whose murder conviction was reduced to manslaughter on appeal.
After substituting the murder conviction with one of manslaughter, the Court of Appeal gave Dominique Moss a 25-year sentence for killing a woman in Freeport, Grand Bahama.
The Privy Council sent the case back to the Court of Appeal last November after ruling that Moss had the right to be heard on an appropriate penalty.
At the Privy Council, Moss' attorney argued that the sentence of 25 years is, on the facts of this case, manifestly excessive both generally and in particular because the sentence imposed by the trial judge on his co-accused was one of six years.
The court ruled, "The defendant was, and is, entitled to address the proper factual basis for sentence now that the conviction for murder has been quashed.
"He is entitled to address the relative roles of the two accused. He is entitled to address the proper tariff for manslaughter in The Bahamas, the proper place within that tariff for the present."
The high court was referring to the sentencing range for manslaughter, and whether the crime deserves the most severe penalty.
In the early hours of the morning, the defendant and his co-accused took the female victim from a bar and onto a golf course with the object of having sexual intercourse with her, according to the evidence.
There was evidence that she was reluctant to go. Her body was found the next morning in standing water on the course.
Her throat had been cut to the extent that her head was almost severed from her body. There were signs of sexual assault. In police interviews Moss and Lotmore each asserted that the other had killed her.
The Bahamas has executed by hanging 50 condemned persons from December 1929 to January 6, 2000, pursuant to the sentence of death pronounced by the Supreme Court of The Bahamas. There is presently one condemned prisoner awaiting execution. The murder rate is currently at 94 and climbing. Therefore, the fear of violent crime has elicited a public cry for a solution to crime. For some the resumption of hanging is the answer, in spite of the compelling evidence that capital punishment is not a deterrent to the rising rate of violent crime and the risk of wrongful convictions.
Professor Ann Spackman, in her book "Constitutional Development of the West Indies 1922-1968" (1975) at page 21, argues that one of the legacies of plantation slavery, colonialism and racial oppression in the Caribbean is the continuing "emphasis on coercion and control" and the existence of harsh laws enforced in a punitive spirit during most of the historical experience of the Caribbean since 1492.
Lloyd Barnett, Q.C., in an essay entitled "The Present Position Regarding the Enforcement of Human Rights in the Commonwealth" in the West Indian Law Journal (November 1980), counters that the Commonwealth Caribbean, in addition to having legacies of slavery and colonialism, has also been the beneficiary of the common law which flowered into passionate self-determination and aspiring constitutionalism.
However, the challenge facing constitutional jurisprudence in the Caribbean is to move away from the English techniques of statutory interpretation, applicable to ordinary legislation, when interpreting the Constitution that requires a more flexible and purposive interpretation, informed by international human rights instruments and the evolving global standard of human rights, human decency and norm of respect. The Privy Council, in A.G. of Gambia v. Jobe (1985), held that there should be a liberal and contextual construction of the Constitution to give effect to the intent and purpose of the Constitution.
The tension between the punitive application of the law and restorative justice approach is most vividly illustrated around the issue of the death penalty in The Bahamas. Articles 16, 17 and 30 of the Bahamian Constitution provide:
16. (1) No person shall be deprived intentionally of his life save in execution of the sentence of a court in respect of a criminal offense of which he has been convicted.
(2) A person shall not be regarded as having been deprived of his life in contravention of this Article if he dies as a result of the use, to such extent and in such circumstances as are permitted by law, of such force as is reasonably justified...
17. (1) No person shall be subjected to torture to inhuman or degrading treatment or punishment.
(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 authorizes the infliction of any description of punishment that was lawful in the Bahama Islands immediately before 10th July 1973.
30. (1)... Nothing contained in or done under the authority of any written law shall be held to be inconsistent with or in contravention of any provision of Articles 16 to 27 (inclusive) of this Constitution to the extent that the law in question -
(a) is a law (in this Articles referred to as 'an existing law') that was enacted or made before 10th July 1973 and has continued to be part of the law of The Bahamas at all times since that day.
Saving clauses, such as contained in Article 17 (2) and the general saving clause contained in Article 30 (a), which were intended to be transitional until law reform removed existing laws inconsistent with the Constitution, are sometimes used to limit the enforcement of personal liberties granted by the Constitution.
Chief Justice Telford Georges, in an essay entitled "The Scope and Limitations of the State Machinery" in Human Rights and Development (1978) at page 45, argued, with respect to a similar clause in the Constitution of Trinidad & Tobago, that such clauses "... 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."
Article 30 (a) is construed as saving Section 312 of the Penal Code that pronounces that the death penalty is the punishment for murder as being compatible with and not in contravention of any of the fundament rights and freedoms contained in Articles 15 to 27. Until 2011 the mandatory sentence of death by hanging was applied upon the conviction of murder and treason.
However, the Privy Council, informed by the evolving jurisprudence in Europe, has forced the Commonwealth Caribbean to conform to the evolving standard of human decency and human rights in the application of the death penalty. In 1993 the Judicial Committee of the Privy Council, in the case Pratt and Another v. Attorney General of Jamaica (1993), held that the execution of the death penalty after five years was unconscionable delay and would constitute a contravention of Article 17 (1) of the Constitution, except where the delay had been the fault of the accused.
This ruling resulted in scores of condemned prisoners in The Bahamas having their death sentences commuted to life imprisonment due to delay. In 2000 the Privy Council, in Neville Lewis, overturned Reckley v. Minister of Public Safety and Immigration (1996) and held that (a) a condemned prisoner has a right to the secure protection of the law and to due process which would be denied if he were to be executed before the completion of a hearing before the Inter-American Commission on Human Rights; (b) that a condemned prisoner who applied for mercy had a due process right to know what material had been placed before the Prerogative Committee on Mercy and be afforded the right to make representations and know the reasons for the decision of which the process is subject to judicial review; and (c) that the passage of time and their treatment in prison may constitute inhuman or degrading treatment.
In Henfield and Ricardo Farrington v. A.G. of The Bahamas, the Privy Council reduced the period by which The Bahamas must execute a condemned prisoner from five years to three and a half years due to an oversight that The Bahamas is a party to the Inter-American Commission on Human Rights. The five-year rule was subsequently reinstated. The Privy Council, in Forrester Bowe, Jr. and Trono Davis v. The Queen (2006), held that section 312 of the Penal Code Act that declares the mandatory sentence of death for the conviction of murder "should be construed as imposing a discretionary and not a mandatory sentence to death". Consequently, the mandatory sentences of death imposed on Forrester Bowe, Jr. and Trono Davis were quashed and the cases were remitted to the Supreme Court for consideration of appropriate sentences.
In light of the Privy Council's ruling in Forrester Bowe, Jr., the Parliament of The Bahamas amended the Penal Code Act in 2011, by removing the mandatory sentence of death for the conviction murder and setting out the circumstances that will attract the death penalty of a person convicted for murder, such as the murder of a member of the police force, a prison officer, a member of the defence force, a judicial officer, a witness, a juror, the murder of a person during the course of a felony or the murder of more than one person.
Trends in thinking
The trend in judicial reasoning by the Privy Council, informed by the evolving standard of human rights and human decency, will eventually lead, in my opinion, to a judicial finding that the death penalty is contrary to human rights and human decency. The reaction in The Bahamas and the wider Commonwealth Caribbean to this trend has been a desperate effort to retain the death penalty. In this context, some advocates have proposed delinking The Bahamas from the Privy Council as the final appellate court for The Bahamas in favor of either the establishment of final appellate court in The Bahamas or by accepting the compulsory original jurisdiction of the Caribbean Court of Justice. The Bahamian society, on reflection, must determine whether the death penalty is a deterrent to crime or cold-blooded killing by the state, which brutalizes the offender and the society. When the state kills does it lessen its offensiveness and elevate killing into principle? If the justification is the principle of "an eye for an eye", should we not also advocate that rape be undertaken by the state as a punishment for rape?
Chief Justice Gubbay of the Supreme Court of Zimbabwe, in the case Catholic Commission for Justice and Peace in Zimbabwe v. Attorney General and Others (1993), argued that retribution is not a sound rationale for the death penalty as follows: "Because retribution has no place in the scheme of civilized jurisprudence, one cannot turn a deaf ear to the plea made for the enforcement of constitutional rights. Humaneness and dignity of the individual are the hallmarks of civilized laws. Justice must be done dispassionately and in accordance with constitutional mandates. The question is not whether this court condones the evils committed by the four condemned prisoners, for certainly it does not. It is whether the acute mental suffering and brooding horror of being hanged which has haunted them in their condemned cells over the long lapse of time since the passing of sentence of death, is consistent with the guarantee against inhuman, or degrading punishment or treatment."
The European Court of Human Rights in the case Soering v. the United Kingdom (1989) abolished the death penalty in the European Union. Similarly, South Africa, Australia, India, New Zealand, Namibia, The Gambia, for example, have also abolished the death penalty. In the United States, 18 states have abolished the death penalty.
In The Bahamas, without an adequate public defender's system, there is a significant risk that innocent persons may be wrongly convicted for murder, since most defendants in capital cases tend to be poor African-Bahamian men, sometimes with mental problems and background of abuse. There needs to be a more disciplined focus on the causes of crime in The Bahamas and the comparative deterrence of the death penalty in relation to life imprisonment.
1. The government should commission The College of the Bahamas and the Eugene Dupuch Law School to conduct a scientific study to determine the comparative deterrence between the death penalty and life imprisonment to inform public education and policy on the issue of the death penalty.
2. The law reform commissioner should be directed to conduct a comprehensive review of all "existing laws" that may be saved under the "existing law provisions" of the Constitution and recommend amendments to ensure consistency of all laws with the Constitution.
o Alfred Sears is an attorney, a former member of Parliament and a former attorney general of The Bahamas.
The debate over the Privy Council and whether The Bahamas should retain it as its final court of appeal was thrust back into the spotlight last week, when Law Lords in London ruled that Maxo Tido, convicted of the brutal murder of a teenage girl, should not have been sentenced to death for his crime.
In its ruling handed down on June 15, the Privy Council said that the crime did not warrant execution. "This was, in short, an appalling murder but not one which warrants the most condign punishment of death," wrote the Law Lords.
The case has now been sent back to the Court of Appeal for the imposition of "the appropriate sentence".
Execution remains the most severe punishment prescribed by the state for the crime of murder.
And it is frustrating to many that it is virtually impossible to carry out that punishment due to the appeals process, which normally takes years to complete.
Despite the regularity of the issuance of the death sentence, executions are uncommon. There has not been a hanging in The Bahamas since David Mitchell was executed on January 6, 2000.
In the 1993 Pratt and Morgan ruling, Her Majesty's Privy Council ruled that it would be cruel and inhumane to execute a murder convict more than five years after the death sentence was issued.
This ruling slowed the execution process. Murder trials take a long time to come up in this country and the appeals process after the death sentence is issued also takes years.
The country hanged 50 men since 1929, according to records kept at Her Majesty's Prison. Five of them were hanged under the first two Ingraham administrations (1992-2002); 13 were hanged under the 25-year rule of the Pindling government (1967-1992); and the remainder were executed between 1929 and 1967.
In 2006, the Privy Council also issued a ruling stating that the section of the Penal Code requiring a sentence of death be passed on any defendant convicted of murder "should be construed as imposing a discretionary and not a mandatory sentence of death."
The government has acknowledged that hangings are unlikely considering the five-year rule and the amount of time it takes for the appeals process to take place. However, despite this acknowledgment, capital punishment remains a legal punishment.
This commentary is not intended to offer an opinion on whether or not capital punishment is a fair or reasonable punishment. There are good arguments for and against hangings.
What is clear is that it is virtually impossible for the death sentence to be carried out. And appeals against the sentence add to the backlog of cases before various courts. The appeals waste time and money.
Anecdotally, the majority of Bahamians appear in favor of executions.
But what is the point of having the death penalty on the books if it is virtually impossible to carry out? Either we end the death penalty or divorce ourselves from the Privy Council.
As we all consider ways to reduce the number of matters before the court in order to make the criminal justice system more efficient, we must put this issue up for debate. Emotionalism is useless. The facts are the facts. Hangings, though desired, are unlikely.
We must now at least start the discussion of the post-hanging period in The Bahamas.
If we are to retain our relationship with the Privy Council -- and there are a number of sound reasons why we should -- new laws are needed, creating categories of murder. A proper definition of life in prison must also be brought forward along with a proper system of parole.
These are the issues that need to be debated when it comes to dealing with those who murder.
Either we accept the reality that our relationship with the Privy Council amounts to an end to the death penalty, or we seriously consider what it would mean to end our relationship with the Privy Council.
A U.S court has dismissed a case termed "straight out of a Hollywood script" involving a top law firm, an offshore bank and a $14 million inheritance, citing lack of jurisdiction.
An edict from a senior policeman banning ex-convicts and suspects wearing ankle bracelets from the world relays this weekend could cost the government a lot of money, according to Bar Association President Elsworth Johnson.
Assistant Commissioner of Police Leon Bethell made the pronouncement when announcing security arrangements for the race.
"Persons who wear ankle bracelets, those persons known to be gang members and those persons with the propensity to commit crime or cause mischief will not be allowed into the stadium," Bethell said.
The Nassau Guardian
contacted Bethell on Sunday to ask him what was the legal basis for the decision.
Bethell, who is also a lawyer, did not state any statutory provision that gave police the authority to impose additional sanctions on suspects on bail without the approval of the court.
"We're trying to save this country," he said.
"Persons who feel that they are aggrieved can take us to court, and we can say that we had information. You don't have the information that we have.
"We are going to police the stadium. If something goes wrong, you are going to be critical of your police force.
"The world will be on us, and while the world is watching The Bahamas, we cannot allow the criminal element to destroy our country."
According to Bethell's criteria for admission to the stadium, businessman Craig Flowers, who was convicted of allowing his premises to be used for a lottery; Bishop Randy Fraser, who was convicted of abusing his position of trust by having sex with a church member he was counseling and Carlos Lamm, a drug convict and former campaign general for Education Minister Jerome Fitzgerald, would not be allowed into the stadium.
Johnson has urged people who fall into this subset to get a declaration from the Supreme Court alleging that their constitutional rights would likely be violated.
"We are a country of laws," the Bar Association president said.
"If one institution should be seen to be following the laws it is the police. These persons have constitutional right of movement. Only the court could restrict their movements.
"I don't agree that these persons should not be allowed to a public event at a public facility. That doesn't make any sense. This is not a police state."
Johnson said police should act on reasonable suspicion, not a just a hunch.
"It would be foolhardy for the police, without any good reason, to refuse to allow these persons into the stadium without reasonable cause because they will cost the government a lot of money that the government can ill afford to spend," he said.
Johnson said the police have the lawyers at the Office of the Attorney General at their disposal, if they had any doubts about the legality of their actions.