January 31, 2013
The Government of the Bahamas and the police will not be taking any action against the patrons and operators of local "web shops" pending the outcome of a "conservatory order" filed by attorney Wayne Munroe. Attorney General Allyson Maynard-Gibson confirmed to the press last night that the oral application, which was made before Senior Justice Jon Isaacs by attorneys Wayne Munroe and Alfred Sears will maintain the “status quo” with respect to the operation of web shops pending the filing of documents commencing “a formal legal challenge”.
Mrs Maynard-Gibson said the judge granted the onservatory Order on the undertaking by counsel that they would file the relevant documents on or before Monday, February 4, commencing the application. “Messrs Munroe and Sears did not file any documents for today’s hearing upon which the Court could deliberate on any substantive issues. The Conservatory Order is only to stand until the applications can be heard and any further order is made by a Judge. What this means is that the relevant Government and law enforcement officials may not take any action to close down web shops or prosecute web shop operators and patrons pending the hearing of the matter by the Court,” she said
“The matter was transferred to the Chief Justice for assignment to a Judge for the hearing of the intended applications. The matter will continue after Messrs Munroe and Sears have filed their documents on Monday per their undertaking, the Attorney General’s Office has had time to consider them and to file documents in response, if necessary and the Court is available for a hearing date,” Mrs Maynard-Gibson added.
The parties to the intended application represented by Mr Munroe are: Pete Deveaux (D/B/A Percy Web Cafe), Sebastian Bastian and Adrian Fox (Island Luck), FML Group of Companies Ltd, Jarol Investment Limited (D/B/A Chances Internet Services), Aspera Co Ltd (D/B/A What Fall) and Kevin Dean/Kenneth Fountain/John Stuart/Barry Kemp and Ty Wells (T/A A-Sue Draw). Mr Sears represents Paradise Games Limited (D/B/A Paradise Games). While this announcement was hailed as a victory by some within the “Yes Vote” community after Prime Minister Perry Christie had ordered all their operations to cease with immediate effect – other concerned citizens question the validity of what was being done before the courts.
“If the statement is that the status quo must remain, then the ruling remains that webshop gaming is, as it was prior to the referendum, illegal. And as such, the police should act,” the source said. In fact, attorneys Lauren Klein and Darren Henfield who argued on behalf of the Crown said that the court ought not to hinder the police in the discharge of their duty. However, Mr Munroe told the press outside of Justice Isaacs’ court yesterday that ultimately, if that were to be the case, the court could never forbid any person from doing anything. “But the court heard the arguments, made a decision and now we have to try the main issue, which is, what is subject to regulation in the Bahamas.”
“In short, the outcome of the hearing was that Senior Justice Isaacs granted a conservatory order in enjoining the Commissioner of Police, the minister of National Security, the Minister of Tourism and the Attorney General, from interfering with the business of the clients represented in court today until the dispute is heard by the judge it will go to,” Mr Munroe said. With Justice Isaacs being unable to hear the matter, it will go to the Chief Justice who will either handle it personally or assign another judge. The issues Mr Munroe and others intend to argue at the substantive hearing is whether or not webshop gaming is subject to regulation with respect to the Lottery and Gaming Act.
The operations’ assertion Mr Munroe said, is “that in a free country, you can do anything that you’re not regulated from doing or do something without a license if it’s not the subject of regulation.” “There are going to be questions on whether or not Parliament could’ve passed those provisions in any event in 1969 in the terms that they did, bearing in mind that we had a constitution before 1969. “That is a constitutional issue and Mr Sears is also raising issues of legitimate expectation which is a continued licensing of persons when disclosure is made of exactly what they are doing. “And when they’re telling the government that they’re doing it, they’re asserting that they have a right to do it, it’s proper for them to do it.
So those issues will be litigated, no doubt after Mr Sears and his team and my team meet up to discuss a bit more, those issues, they’re unlikely to be narrowed.” When asked if the prime minister acted rashly without considering if such issues could be litigated, Mr Munroe said the PM did only what he “thinks he must do.”“You have separate arms of government and the problem that we have in the Bahamas is people tend to subscribe all power to one arm of the government and generally that’s the executive government.” He noted that the executive, judiciary and legislature all have their respective purposes and functions but the webshop gaming operators were currently taking issue with the legislative branch and “contesting what the legislature did in the Act.”
“So in a way, the reason that we could say to the court that we require this injunction is because the Prime Minister made it plain, he was going to soldier on. “And so the public needs to come to grips that we have three separate branches of government. The branch of government the people downgrade the most, the judiciary, are the ones who interpret what the legislature does and can even declare it invalid and controls the behaviour of the executive if they’re going to take advantage of the citizenry.” The seasoned attorney said lawyers are not required to have personal feelings regarding legal matters, however, he shared his thoughts on pursuing this matter for the ease of mind of the webshop workers who are in fear for their livelihoods.
“What I would say is this, as a human being, one must feel a degree of satisfaction that the people, the human beings who work in these establishments can have some peace of mind. I’m understanding that absentee has been up because people have just been quite frankly afraid,” he said. “A lot of times in this country, we’re not very Christian in thinking about other people, what’s happening and affecting other people. Being your brother’s keeper does not mean putting your foot on his neck and pressing down. It does not mean putting him out of a job. Does not mean taking what he has; does not mean reducing him to despair.
The only command of Christ was to love. I do not know how you love somebody by making them unemployed.” Vote Yes campaign coordinator Philip Galanis was there when the injunction application proved successful and shared his thoughts on what the application victory meant. “I think what it clearly demonstrates is the separation of powers from government. The executive said they were too close and the judiciary said today they can remain open until the substantive hearing.” “And so I think that is a very positive thing for our democracy, a vibrate growing democracy and I think it bodes well for the future,” he said. Mr Galanis shared similar sentiments as Mr Munroe about the webshop workers’ situation and offered them words of encouragement. “They should be encouraged by today’s decision. I’m hoping that when the attorneys go into court to argue the substantive matter, that they will get a favourable result and that it will then all go well for the 3,000 plus employees in the web shops.”
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