Bahamas: Not only does the Privy Council make available to Bahamians some of the world's most able and experienced judges, it does so at no cost

tribune242 editorial

Nassau, The Bahamas



IN MAY last year the Arbitration Act and the Arbitration (Foreign Arbitral Awards) Act was introduced in an attempt to put the Bahamas in a competitive position for recognition as an international business centre.

The hope was to establish the Bahamas as a dispute resolution centre within five years to settle -- outside of the court system -- both domestic and international matters.

And so now is not the time to even consider abolishing the Judicial Committee of the Privy Council --our highest court of appeal, sitting in London -- which is one institution that -- in addition to the proposed arbitration services -- gives an aura of stability to our local judicial system. If the Bahamas is to be considered a stable jurisdiction to attract international business, the Privy Council is one institution that grounds us in legitimacy. As one Bahamian lawyer put it: "It is one of the most respected courts in the world and brings international currency to our court system."

Together the five Law Lords have more than 100 years of legal experience to draw on. In addition -- removed from local politics, and petty prejudices -- litigants have confidence that their disputes are being treated objectively. This independence and removal from local contamination certainly inspires respect in the system, something that our own courts are lacking.

One would be surprised at what weight the existence of the Privy Council carries when an international business is being considered for relocation to the Bahamas. Businesses not only want a stable government, good communications, and efficient staff, but a sound judicial system. To business leaders this is of paramount importance.

Our local courts are made to look impotent when adversaries can so play the system that one side in the dispute cannot get a hearing to present his complaint.

In a recent international case, a lawyer pointed to what appears to be developing into a serious case of "judge shopping". It would seem that the case can't get off the ground because the judges are being toppled like nine pins. Already three judges have stepped down from the case, and a fourth has been called on recuse himself -- soon there will be no judges left to try the case. From an outsider looking in, it appears that our court system is being made to look impotently foolish.

Of course, there is still the Privy Council. When the local courts fail, the respected arbiter of justice stands solid to pick up the pieces. Bahamians would be foolish to agitate for its removal.

Not only does the Privy Council make available to Bahamians some of the world's most able and experienced judges, it does so at no cost.

In December 2006, the Judicial Committee made history when for the first time in over 170 years it left its permanent London home to hold a five-day sitting in the Bahamas. The five Law Lords were here again for a sitting in 2007 and 2009.

There are those in the legal fraternity who have suggested that the Bahamas give up the Privy Council and throw its lot in with the recently established Caribbean Court of Justice. Established in 2001 and based in Port of Spain, Trinidad and Tobago, this court is in its embryonic stage. It has not been established long enough to have a track record or attract the international recognition that the Privy Council has had for hundreds of years.

If the only reason for opting for this court is to hope that our "Caribbean brothers" will see eye-to-eye with us on capital punishment is indeed to play Russian roulette with this country's future. As explained in this column yesterday, many Caribbean lawyers are also moving away from capital punishment in favour of life imprisonment.

Of course, the weightiest consideration of all is the cost. The Bahamas would have to make a financial contribution to be able to use the services of the Caribbean court.

And the creation of a local court to replace the Privy Council cannot even be considered. It would be financially prohibitive. Already we do not have enough lawyers to staff our present legal institutions.

The Attorney General's office, which is inundated with cases going back years, is seriously understaffed. The courts cannot keep up with the work load that they already have. A country as small as the Bahamas would never be able to pay what would be required to attract our best lawyers from their private practices to sit on a high court bench. And even if we could there are not enough of them to match the calibre and resources of the Law Lords of London.
It is now time for Bahamians to appreciate what they have and start building on already well laid foundations.

September 28, 2011

tribune242 editorial

Bahamas Blog International

Bahamas: Criminal justice in crisis

IN A few weeks time the Prime Minister will give his state of the nation message, which will deal with many subjects of importance. Crime will obviously feature high on his agenda.

This will be the deciding year -- either the criminals will get control or the community, the police and the judiciary will unite to return law and order to the nation.

Today the criminal seems to have the upper hand. In other words he is literally getting away with murder.

The judge who returns a person to the streets on remand is not doing that person a favour. Some would have been safer behind bars for whatever length of time they would have had to await trial. In the interim several of them have been killed.

But let's look at it from the point of view of the accused. Recently we were told by one -- a tinge of sarcastic bitterness in his voice -- "Man I just working for my lawyer!"

Translated that comment meant that he fully realised that with a criminal record he had no hope of finding a job once he was returned to the streets on remand. The reality of life was that he had to eat, secure lodging and in many cases try to support a family. Unable to work, he had to continue a life of crime, and the crime had to be lucrative enough to provide lawyer's fees against the day he was caught and had to again plead "not guilty" before the bar of justice. His future depended upon that lawyer using his debating skills and the knowledge of the law to keep him out of prison. And so for him -- and the community -- the cycle of crime continues.

There is then the even more frightening phenomenon of the intimidation of witnesses. Even from behind their prison bars witnesses are being intimidated by certain accused persons. Witnesses have often recanted through fear.

A person who has nothing to lose, but everything to gain by using his wits will go to criminal lengths to secure his freedom. And some of these men, sitting in a jail cell, are going to those criminal lengths to intimidate a community.

We have heard of a case of an accused, in jail, using a cell phone to contact a leading witness in his case to say what would happen to him if he testified. Imagine in prison with a cell phone. Imagine what would happen to trials if witnesses are silenced through fear. No one would go to prison and justice would have to take its course on the streets.

For prisoners to have cells phones in prison -- and this has been reported on many occasions in the past -- there has to be a severe breach of security at the prison. The police should do a thorough investigation and get to the bottom of this. From what we understand, this particular prisoner is not the only one who is managing his affairs from a prison cell with the aid of a cell phone.

There was another instance, which we are told took place not too long ago during a hearing in the Nassau Street magistrate's court. The accused is said to have lifted his hand showing his palm to the witness in the box. The number 186 was written on the palm.

Later the witness asked the significance of 186. The reply was that in "street language" 186 meant that the accused planned to instruct his "boys" to shoot up the witness and all his family in a "drive by."

And then there are the lawyers. Much of the case backlog is caused by lawyers, either because they are not prepared, have too many cases going on at the same time and need postponements, or are just using delaying tactics in hopes that the case will fall off the court calendar for want of many things, not the least among them the absence of witnesses. The court system not only needs an overhaul, but on the part of lawyers a return to discipline, efficiency and respect for the court's time.

As for some of the judges -- that's another story. Sometimes we wonder if they live on the same planet and are aware of what they are doing to the community when they return, not once, but twice and in a few cases three times, murder accused to the community to await trial. There have been occasions when these accused have killed each other and saved the court time, but there also have been occasions when an innocent bystander has been caught in the cross fire.

Last year Dame Joan Sawyer, Appeals Court judge, ruled that in bail decisions if a judge has to warn the bail applicant not to interfere with witnesses, then that applicant should not be granted bail.

We understand that one of that august body retorted that if that were the case then he would not give such warnings in the future for fear of the Attorney General's office applying to revoke the bail.

These are the problems that the Prime Minister and parliamentarians have to face, because legislation is obviously needed to deal with some of them.

January 04, 2010

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Bahamas Caribbean Blog International